Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 2) [1987] HCA 10; (1987) 162 CLR 153 (7 April 1987)

HIGH COURT OF AUSTRALIA

JENNINGS CONSTRUCTION LTD. v. BURGUNDY ROYALE INVESTMENTS PTY. LTD. (No. 2) [1987] HCA 10; (1987) 162 CLR 153
F.C. 87/011

Lien

High Court of Australia
Brennan(1), Deane(1), Dawson(1), Toohey(1) and Gaudron(2) JJ.

CATCHWORDS

Lien - Workmen's lien - Contractor or subcontractor performing work on land - Lien over land for contract price - Lien not available against land vested in Crown or in any person for or on behalf of Government - Lien not to increase or change liability of Crown or of any person procuring performance of work on behalf of Government - Building agreement between Northern Territory and contractor - Territory required to finance construction - Advances held upon trust - Land to be transferred to third party after building - Crown lease granted to contractor - Work by subcontractor - Liens claimed over lease by subcontractor for unpaid charges - Workmen's Liens Act 1893 (S.A.), ss. 5, 21, 25, 48.

HEARING

1987, March 4, April 7. 7:4:1987
APPEAL from the Supreme Court of the Northern Territory.

DECISION

BRENNAN, DEANE, DAWSON AND TOOHEY JJ.: The Northern Territory of Australia ("the Territory"), "a body politic under the Crown" (see the Northern Territory (Self- Government) Act 1978 (Cth) s.5), entered into an agreement ("the Development Agreement") with Burgundy Royale Investments Pty.Ltd. ("Burgundy Royale") dated 17 November 1982 with respect to the construction of a complex of buildings on a parcel of land described as Lot 5335, Town of Darwin. An hotel complex and a Performing Arts Centre were to be constructed (together constituting "the Darwin Centre") and an office complex was to be added to the hotel complex. The Territory was to fund the costs of constructing the Performing Arts Centre. Tenders were to be called. Burgundy Royale was to assume full responsibility for the building contract but the Director of Public Works was given certain supervisory functions with respect to a separable part of the building contract relating to the Performing Arts Centre. In addition to the costs of constructing the Performing Arts Centre, the Territory was obliged to pay Burgundy Royale a proportion of certain other costs to be incurred in carrying out the agreement between Burgundy Royale and the Territory. It was agreed that the Territory should put Burgundy Royale in funds in advance for the expected expenditure on the construction of the Performing Arts Centre. Clause 8(c) of the Development Agreement provided:

" Funds received by the Company from the Territory
under this clause shall be held in trust by the
Company for the Territory and the Company shall
whenever possible invest such sums in authorized
trustee investments for the benefit of the
Territory and any interest earned shall be
credited to the Territory. The Company shall
provide the Territory with monthly
reconciliations of monies received from the
Territory, interest earned and monies spent
pursuant to this agreement on behalf of the
Territory."

2. For the purpose of the construction of the Darwin Centre and office complex, Crown Lease Term No.115 was granted to Burgundy Royale over Lot 5335 by the Minister for Lands and Housing. The lease was registered in the register book, vol.193, fol.51. The lease was initially for a period of three years from the date of its commencement, 17 November 1982, but it was subsequently extended until 15 May 1987. The original conditions of the lease were as follows:

" Conditions and Covenants

1. Subject to the Crown Lands Act the lessee will
not use the land for a purpose other than the
purpose for which it is leased viz; The
construction of International Hotel,
Performing Arts Centre, Convention Centre,
Offices, Carpark and Ancillary.

2. The lessee will pay rates and taxes which may
at any time become due in respect of the
leased land.

3. The lessee will comply with the terms of the
Development Agreement dated the 17th day of
November 1982 between the Territory and the
lessee.

4. The lessee will perform its obligations under
the said Agreement by the first day of July,
1985 or within such further time as may be
approved in writing by the Minister and the
lessee will at all times maintain and repair
and keep in repair all improvements on the
leased land to the satisfaction of the
Minister.

5. That all development will be in accordance
with any planning instrument or instrument of
determination under the Planning Act affecting
the land the subject of the lease.

6. Without in any way limiting the generality of
forfeiture provisions failure of the lessee to
comply with any duty or obligation imposed on
the lessee by the said Agreement is a breach
of a condition of the lease."

3. On 8 February 1985, pursuant to s.23H of the Crown Lands Act (N.T.), the conditions and covenants were varied by adding what was called a condition:

" 7. The lessee may, following issue of a
Certificate of Occupancy under the Northern
Territory Building Act for the development on
the leased land, surrender the whole of the
Crown Lease and thereupon shall be granted an
Estate in Fee Simple."

On 10 November 1986 that condition was omitted and a new condition was inserted in its place:

" 7. The lessee may, at any time after the date
hereof surrender the whole of the Crown Lease
and thereupon shall be granted an Estate in
Fee Simple."

Insertion of condition 7 was calculated to enable Burgundy Royale to perform its obligations under cll.2, 28 and 29 of the Development Agreement which provided:

" 2. The Company shall ensure that the
construction of the Darwin Centre and the
Office Complex complies in all respects with
the requirements to support a successful
application for sub-division of the Project
Area under the provisions of the Unit Titles
Act. The Company shall ensure that the said
subdivision shall result in the issue of a
separate unit title in respect of the
Performing Arts Centre."

" 28. Forthwith upon the completion of the Darwin
Centre, the Company shall make proper
application for the sub-division of the
Project Area under the provisions of the
appropriate Unit Title legislation.

29. Upon the issue of the Unit Titles, the
Company shall forthwith transfer to the
Darwin City Council without any cost to the
Darwin City Council or the Territory, the
unencumbered title to the Performing Arts
Centre PROVIDED THAT nothing in this clause
shall impose responsibility on the Company to
pay any stamp duty which may be assessed in
respect of the said transfer."

4. The appellant Jennings Construction Limited ("Jennings") and Burgundy Royale entered into a building contract for the construction of the Darwin Centre and office complex. Jennings claims that certain moneys (amounting in all to some $27,000,000) have become due and payable to it from time to time pursuant to the building contract. In respect of those moneys Jennings claimed liens over the whole of the estate or interest of Burgundy Royale "under and by virtue of" Crown Lease Term No.115. Jennings' claim is founded on s.5 of The Workmen's Liens Act 1893 (S.A.) ("the Liens Act") which provides that in such a case:

" A contractor or sub-contractor shall have a
lien for the contract price, so far as accrued
due, on the estate or interest in land of any
owner or occupier".

(The Liens Act operates in the Northern Territory by virtue of s.3 of The Northern Territory Justice Act 1884 (S.A.), s.7 of the Northern Territory Acceptance Act 1910 (Cth) and s.57 of the Northern Territory (Self-Government) Act.) Burgundy Royale is not an "owner" of Lot 5335. That term is defined by s.2 of the Liens Act to mean "the owner of the legal or equitable fee simple of land". But Burgundy Royale is an "occupier". That term is defined to include a lessee of land. Section 6 of the Liens Act provides that a contractor's lien shall not extend "beyond that portion of the contract price payable by the owner or occupier under the contract ... and unpaid at the time when the owner or occupier shall receive notice of the lien or of its registration ...". Jennings registered its liens by lodging notices of lien in the office of the Registrar-General in respect of the several amounts which it claimed to have become due and payable. That was done in conformity with s.10(3) in order to satisfy the requirement of s.10(1):

" A lien under this Act with regard to land
shall be available only if registered before the
expiration of twenty-eight days after the wages
or contract price in respect of which such lien
has arisen shall for the purposes of this section
have become due."

A memorandum of each notice was registered on the relevant folio of the register book. The notices had the effect of caveats by reason of s.12 of the Liens Act which provides:

" A notice lodged in respect of land under the
provisions of the Real Property Act shall be
deemed to be a caveat forbidding the registration
of any dealing with the estate or interest sought
to be affected by the lien, unless such dealing
shall be expressed to be subject to the claim of
the person lodging the notice, and the provisions
of the Real Property Act relating to caveats
shall, so far as applicable and so far as
consistent with this Act, apply to every such
notice."

It is said that the liens or lodgments of the notices of lien have conferred on Jennings such an estate or interest in the land as to enable it to prevent Burgundy Royale from surrendering Crown Lease Term No.115 without Jennings' consent: see s.92 of the Real Property Act (N.T.). If this be so, the presence on the register of the notices of lien has prevented Burgundy Royale from obtaining the grant of an estate in fee simple pursuant to condition 7 and from completing its obligation to effect a sub-division of Lot 5335 and to transfer to the Darwin City Council an unencumbered title to the Performing Arts Centre.

5. Section 21 of the Liens Act provides that a person entitled to a lien may bring an action to enforce it "in any Court in which the ... contract price in respect of which such lien ... is claimed could have been recovered against the person primarily liable therefor". Jennings brought seven actions in the Supreme Court of the Northern Territory to enforce the respective liens of which notice had been lodged. The relief or remedy which Jennings sought is that stated in s.25(1) which provides:

" An order for the enforcement of a lien or
liens may be carried into effect by a writ or
warrant from the Court for the sale of the estate
or interest in land or the goods the subject of
the lien."

6. The seven actions have not been tried. Burgundy Royale applied on interlocutory summonses in the actions to have the claims of lien cancelled. These applications were founded on s.32 which provides:

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

The primary ground advanced by Burgundy Royale as warranting an order of cancellation under s.32 was derived from the provisions of s.48:

" Nothing in this Act contained shall create or
give any right or remedy against land vested in
Her Majesty or in any person for or on behalf of
the Government or increase or change the
liability of Her Majesty, or of any person
procuring the performance of work for or on
behalf of the Government and, except as between
the contractors, sub-contractors, and workmen,
this Act shall not apply to such work."

The argument which prevailed before Kearney J. and before the Court of Appeal (O'Leary C.J., Rice and Asche JJ.) was that no right or remedy had been created in favour of Jennings or given to it which might be enforced in any of the seven actions for the reason that what was sought in the actions was a right or remedy "against land vested in Her Majesty". Jennings conceded that Lot 5335 was Crown land and that the Crown was the owner of the reversion of the lease. In the courts below, the Crown's interest in Lot 5335 was seen to stamp on that land the character of "land vested in Her Majesty". Their Honours applied the reasoning in Hawkins v. Minister for Lands (N.S.W.) [1949] HCA 21; (1949) 78 CLR 479. In that case the question was whether land over which a perpetual lease had been granted was within the definition of "Crown lands". By the relevant statutory definition, "Crown lands" meant "lands vested in His Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee simple under the Crown Lands Acts". Dixon J. said, at p.492:

" No doubt the reversionary interest in the Crown
is slight and it may be said to be technical.
But a rent is reserved, there are special
conditions, the interest is capable of surrender
and, for non-payment of survey fees, of
forfeiture. It is difficult to find any ground
for giving to the word 'vested' anything but its
legal meaning. It can hardly be confined to
'vested in possession.' The reference in the
exclusionary part of the definition to land
granted in fee simple tends strongly against the
view that after the grant of a limited interest
in possession land is no longer 'vested' in the
Crown for the purposes of the definition. In my
opinion land subject to a Crown lease in
perpetuity may still be 'vested in His Majesty.'"

See also per Latham C.J. at p.487, McTiernan J. at p.496, and Williams J. at p.499. We are not concerned in the present case with a definition which excludes land "granted in fee simple", but the reasoning in Hawkins does not rest solely or chiefly on the exclusion contained in the definition there considered. The reasoning in Hawkins establishes, as their Honours rightly held in the Supreme Court, that Lot 5335 might properly be described as land vested in Her Majesty. But that does not conclude the question. The critical question is whether the land "against" which the Liens Act creates or gives a right or remedy is land vested in Her Majesty. To answer that question it is necessary to identify what the statutory right or remedy is given against.

7. A lien is given to a contractor "on the estate or interest in land" of an owner or occupier (s.5), provided part of the contract price is payable but unpaid by the owner or occupier against whose estate or interest the lien is enforceable: s.6. The Liens Act speaks of that estate or interest being "affected" (ss.11,12) and s.25(1) provides for the remedy of a writ or warrant for "the sale of the estate or interest in land or the goods the subject of the lien". The Liens Act creates or gives no right or remedy to a contractor against the property of any person save the property of a person from whom the contract price or part of it is due to the contractor (cf. s.26). No right or remedy is given against estates or interests vested in persons other than the debtor owner or occupier. Burgundy Royale's leasehold interest in Lot 5335 is affected but not the reversionary interest of the Crown, for there is no part of the contract price payable but unpaid by the Crown. If "land" in s.48 refers to the estate or interest against which the statutory right and remedy may be enforced, the vesting of the reversion in the Crown is immaterial: it is the leasehold interest of Burgundy Royale against which the statutory right lies and against which the statutory remedy may go.

8. However, Burgundy Royale points to the use of the term "land" in s.48, in contrast with the use of the term "estate or interest in land" in other provisions of the Liens Act which define and confine the statutory right and remedy, as a clear indication that "land" in s.48 does not mean an estate or interest in land but the land itself, the physical entity. Then, so the argument runs, no right lies and no remedy can go against that land if the Crown has a reversionary interest in it. But the submission can be upheld only if the term "land" in s.48 does not refer to the estate or interest of an owner or occupier. In some provisions, "land" clearly means the physical entity: see s.5(a) and (b). But in other sections of the Liens Act, where the term "land" is used, the context shows that the term means the estate or interest in land of an owner or occupier. Thus in s.16 which speaks of the discharge from a lien of "the lands affected" by a notice of lien, "land" can mean only the estate or interest affected by a notice of lien. In s.25(2) which speaks of the enforcement of a charge against a person by execution "against the goods and land" of that person, "land" can mean only that estate or interest in land which is vested in the person against whom execution goes. The context of the Liens Act does not require that "land" in s.48 be understood to mean the physical entity.

9. In the absence of a contrary context, the term includes estates or interests in land. Section 19 of the Interpretation Act (N.T.) defines "land" as including "all messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description and whatever may be the estate or interest therein". The Interpretation Act expressly provides (s.3) that, subject to s.2 which is not presently relevant, it applies to each Act of the State of South Australia in its application to the Northern Territory whether made before or after the making of the Interpretation Act. Whether or not a lease for years is a "tenement" - a proposition which H.W. Challis denied (see (1890) 6 Law Quarterly Review 69, reprinted as Appendix 1 to Challis's Real Property, 3rd ed. (1911), p.424) - the definition, which follows similar definitions in other Interpretation Acts, "includes freehold and leasehold, corporeal and incorporeal interests of every description": per Jacobs J. in Re Lehrer and the Real Property Act (1960) 61 SR (NSW) 365, at p 370. A lien over Burgundy Royale's leasehold interest may therefore be described as a right against "land" and, as that leasehold interest is the only estate or interest against which any right or remedy is created or given by the Liens Act, the first limb of s.48 does not preclude the enforcement of Jennings' liens against Crown Lease Term No.115 unless Her Majesty has a vested interest in that lease. Nor does the second limb preclude enforcement unless the lease is vested in Burgundy Royale "for or on behalf of the Government".

10. Burgundy Royale submits that the Crown does have an equitable interest in Crown Lease Term No.115 and reference is made to three supposed sources of that interest. It is said that the interest arises from the terms of the Development Agreement, from the provision of funds for the construction of the Performing Arts Centre, and from Burgundy Royale's obligation to transfer an unencumbered title to the Performing Arts Centre to the Darwin City Council when construction is complete and a separate unit title has issued. Emphasis is placed on cl.8(c) of the Development Agreement requiring funds received from the Territory to be held in trust until applied to the cost of construction of the Performing Arts Centre, on cl.22(b) requiring Burgundy Royale to provide the Darwin City Council with chilled water and hot water for airconditioning purposes, and on cl.22(c) requiring Burgundy Royale to grant to the Darwin City Council a registrable long-term lease at a nominal rent of 15 car parking spaces in the Darwin Centre carpark. Although the Development Agreement provides expressly for moneys awaiting application to defray the costs of construction of the Performing Arts Centre to be held in trust, Burgundy Royale alone is responsible for paying the builder. Burgundy Royale is responsible to the builder, not as trustee or agent for the Territory but on its own account. Under the Development Agreement, Burgundy Royale alone is responsible for all aspects of the building contract: see cll.3,4,6. The Development Agreement does not imply that, when Burgundy Royale applies moneys held in trust under cl.8(c) to pay the builder, it is paying its debts with the Territory's money: on application of the money in payment of the builder the money is, as between Burgundy Royale and the Territory, money which the Territory pays to Burgundy Royale or money which the Territory authorizes Burgundy Royale to apply as its own by paying it to the builder. The trust is merely the mechanism to ensure that Burgundy Royale has the money on hand to make timely payment of the costs of construction of the Performing Arts Centre and to ensure that the money belongs to the Territory until the builder is paid and that the Territory obtains the yield on the money pending payment.

11. It was submitted that the Territory was in a position akin to that of a purchaser of property in whom is vested an equitable interest in the property. There are difficulties in the way of accepting this submission. In the first place, it is by no means clear that the Territory would have been entitled to a decree of specific performance, and it is therefore doubtful whether (in the absence of such an entitlement) the Territory could have acquired an equitable interest: McWilliam v. McWilliams Wines Pty.Ltd. [1964] HCA 6; (1964) 114 CLR 656; Perri v. Coolangatta Investments Pty.Ltd. [1982] HCA 29; (1982) 149 CLR 537, at p 566. However that may be, it is clear that the Darwin City Council, not the Territory, is to take the benefit of the provisions of the Development Agreement as to the Performing Arts Centre. If the Territory was entitled to a decree compelling Burgundy Royale to complete the construction of the Performing Arts Centre, to surrender the lease, to obtain a unit title to the Centre and to transfer it to the Darwin City Council, any equitable interest in Lot 5335 that might arise would be vested in the Darwin City Council not in the Territory. Nor is any equitable interest vested in the Territory by the Territory's providing money to Burgundy Royale to pay for the construction of the Performing Arts Centre. Burgundy Royale relied on Plimmer v. Wellington Corporation (1884) 9 AC 699 and Olsson v. Dyson [1969] HCA 3; (1969) 120 CLR 365, at p 379, but, as the judgment of Ungoed-Thomas J. in Ward v. Kirkland (1967) Ch 194 (approved in Olsson v. Dyson) demonstrates, the equitable principle illustrated by Plimmer's Case has no application unless it would be unconscionable for a party to assert his legal rights. There is nothing unconscionable in Burgundy Royale taking the benefit of the money provided by the Territory in accordance with the terms of the Development Agreement. The ongoing obligations with respect to the provision of chilled water and hot water and the granting of a lease of car parking spaces create no equitable interest in the Territory. There is thus no ground for holding that the Territory has an equitable interest in Crown Lease Term No.115. That lease is not "land vested in Her Majesty".

12. Burgundy Royale relies on the next limb of s.48, submitting that the leasehold interest is vested in it "for or on behalf of the Government". The context of the term "on behalf of" determines its meaning: Reg. v. Toohey; Ex parte Attorney-General (N.T.) [1980] HCA 2; (1980) 145 CLR 374, at p 386. In the present context it imports the relationship of trustee and cestui que trust. If the Government has no proprietary interest, whether legal or equitable, in the lease, the person in whom the lease is vested cannot be said to hold it on behalf of the Government. The Government may well be interested in the performance of the Development Agreement but the Government's contractual, non-proprietary rights do not attract the operation of the first two limbs of s.48.

13. The next limb of s.48 prevents the operation of the Liens Act from increasing or changing "the liability of Her Majesty, or of any person procuring the performance of work for or on behalf of the Government". The liens or their enforcement impose no liability on Her Majesty. The Crown is under no liability to Jennings and the liens do not seek to charge the Crown with Burgundy Royale's liability. Of course, the liability of Burgundy Royale is increased or changed in that a kind of statutory charge for that part of the contract price which is payable but unpaid is given or created over its leasehold interest. But Burgundy Royale did not incur "the liability" (that is, the payable but unpaid contract price) in "procuring the performance of work for or on behalf of the Government". The work the performance of which Burgundy Royale procured was done for it alone. Not only was Burgundy Royale the contracting party under the building contract; it was also required by cl.4 of the Development Agreement to "assume full responsibility for all aspects of the (building) contract". The Development Agreement ensured that the Government should incur no liability in respect of work done under the building contract and that its interest in the project should be limited to its contractual rights against Burgundy Royale under the Development Agreement. However, the Government's contractual rights were protected by cl.31 of the Development Agreement and condition 6 of the lease. A breach of "any term or condition" of the Development Agreement (cl.31) exposed the lease to forfeiture for breach of condition of the lease (condition 6). The draconian forfeiture provisions gave the Government a remedy for any failure by Burgundy Royale to fulfil its contractual obligations but left Burgundy Royale solely responsible for procuring the construction of the Darwin Centre and office complex.

14. It follows that s.48 did not operate to preclude the creation, registration or enforcement of the liens over Crown Lease Term No.115. The appeal must be allowed, but several issues in the litigation remain unresolved. Burgundy Royale succeeded on the s.48 argument before the Court of Appeal and it was unnecessary for that Court to consider other grounds of challenge to the validity of the liens which Jennings sought to enforce in actions Nos. D2, D4 and D6 of 1987. In those actions, Burgundy Royale raised grounds of challenge other than s.48 but those grounds failed before Kearney J. and have not been considered by the Court of Appeal. The appeals to the Court of Appeal in those matters must therefore go back to that Court in order that that Court may decide whether and how the appeals should now be disposed of.

15. If Jennings were ultimately to succeed in the actions, the enforcement of the liens may be affected by s.26 of the Crown Lands Act which requires the Minister's consent to a transfer of a Crown lease or to a parting with possession of land the subject of a Crown lease. That problem and the problem of enforcing a lien by sale of an onerous lease were mentioned but not pursued before this Court. It is unnecessary now to do more than note that the resolution of the present appeal is but one step in the complex litigation on which the parties have embarked with seeming enthusiasm.

16. We would allow the appeal with costs, set aside the judgments of the Court of Appeal and in lieu thereof order (a) that in actions Nos. D3, D5, D7 and D8 the appeals to the Court of Appeal be allowed with costs, the orders of Kearney J. be set aside and the interlocutory summonses in those actions be dismissed with costs; and (b) that in actions Nos. D2, D4 and D6 the appeals to the Court of Appeal stand adjourned for further consideration. We would further order that the orders of Kearney J. in actions Nos. D2, D4 and D6, cancelling Jennings' liens be stayed upon the same terms as those imposed by this Court on the grant of special leave to appeal until the appeals to the Court of Appeal in those actions come on for hearing before the Court of Appeal.

GAUDRON J.: I have had the benefit of reading the reasons for judgment of Brennan, Deane, Dawson and Toohey JJ. I agree with their conclusion that s.48 of The Workmen's Liens Act 1893 (S.A.) did not operate to preclude the creation, registration or enforcement of liens claimed by Jennings Construction Limited over Crown Lease Term No.115. I agree substantially with their Honours' reasons, however, in addition, I would make the following observations.

2. It was assumed in argument that whenever s.48 operates, it operates either to preclude the creation of a lien or to preclude the registration of the lien. Section 48 provides:

"Nothing in this Act contained shall create or give
any right or remedy against land vested in Her
Majesty or in any person for or on behalf of the
Government or increase or change the liability of
Her Majesty, or of any person procuring the
performance of work for or on behalf of the
Government and, except as between the contractors,
sub-contractors, and workmen, this Act shall not
apply to such work."

3. The closing words of this section make it clear that the Act has no application to the situation where work is procured for or on behalf of the government (and possibly where work is procured by Her Majesty), save "as between the contractors, sub-contractors, and workmen". In that situation, no lien is created in respect of the specified work. However, the fact that the section excludes the operation of the Act in its entirety in these particular circumstances would suggest that the Act is otherwise to have some operation, so long as that operation stops short of either effecting a right or remedy against land vested in Her Majesty or any person for or on behalf of the government, or of increasing or changing the liability of Her Majesty or of a person procuring the performance of work for or on behalf of the government.

4. I am not satisfied that the mere creation of a "lien under this Act with regard to land" (s.10) could result in any of those consequences, for by s.10 such a lien is not available unless registered. Even though upon registration a lien becomes available, by s.15 of the Act a lien "upon the estate or interest of any owner or occupier shall cease unless an action shall be brought against the owner or occupier for enforcement of the lien within fourteen days from the registration thereof".

5. It is also difficult to see how registration per se could constitute a right or remedy in any sense relevant to the operation of s.48, or how it could increase or change either the liability of Her Majesty or of any person procuring work for or on behalf of the government. In the case of land under the provisions of the Real Property Act (N.T.) the lodgment of a notice of lien (being, by s.11 of The Workmen's Liens Act the procedure whereby registration is effected) will, by virtue of s.12 of the Act, be "deemed to be a caveat forbidding the registration of any dealing with the estate or interest sought to be affected by the lien, unless such dealing shall be expressed to be subject to the claim of the person lodging the notice ...". Whilst the operation of s.12 will effectively preserve whatever right or remedy may be available to the person claiming the lien, the operation of the section does not seem to me to itself constitute a right or remedy.

6. If the above analysis be correct the operation of s.48 is directed not to the creation or registration of a lien, but to its method of enforcement. Although it is provided by s.25(1) of the Act that "An order for the enforcement of a lien or liens may be carried into effect by a writ or warrant from the Court for the sale of the estate or interest in land or the goods the subject of the lien", it is clear that an order for sale is not the only means by which a lien may be enforced. For example, s.16 contemplates that an owner or occupier may deposit the amount claimed in respect of the lien with the Registrar-General to abide the event of an action to enforce the same or to recover the amount deposited. Similarly s.26 provides a procedure whereby the person against whose property the lien is sought may make payment into court of the amount claimed. Presumably other remedies such as attachment of rents payable by a lessee or sub-lessee in the case of a leasehold estate are also available.

7. These matters were not fully explored in argument, and in view of my general agreement with the reasons for judgment of Brennan, Deane, Dawson and Toohey JJ. it is unnecessary for me to express any concluded view thereon, other than to observe that I would not consider a lien created with regard to land by the Act as being at any time prior to its availability, that is, prior to registration thereof, a right or remedy against land.

8. The appeal should be allowed, and orders made as set forth in the judgment of Brennan, Deane, Dawson and

ORDER

D3, D5, D7 and D8 of 1987

Appeals allowed with costs.

Set aside the orders of the Court of Appeal of the

Northern Territory of Australia in appeals AP7, AP9, AP11 and AP12 of 1986 and in lieu thereof order that the appeals to that Court be allowed with costs, the orders of Kearney J. be set aside and the interlocutory summonses in those proceedings be dismissed with costs.

D2, D4 and D6 of 1987

Appeals allowed with costs.

Set aside the orders of the Court of Appeal of the Northern Territory of Australia in appeals AP6, AP8 and AP10 of 1986 and in lieu thereof order that the appeals to that Court stand adjourned for further consideration.

Order that, upon the appellant by its counsel undertaking to pay the respondent such damages or loss whether legally claimable or not as this Court or a Justice thereof may think just and fair as compensation to the respondent for any disadvantage it may sustain by reason of this order, the orders of Kearney J. cancelling the appellant's liens be stayed until those appeals come on for hearing before the Court of Appeal.