Stapleton v FTS O'Donnell Griffin & Co (Q) Pty Ltd [1961] HCA 70

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Windeyer JJ. Stapleton v FTS O'Donnell Griffin & Co (Q) Pty Ltd [1961] HCA 70

ORDER Demurrer allowed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 14 Dixon C.J., Kitto, Taylor and Windeyer JJ.

This matter comes before us by way of a demurrer to a statement of claim by which the plaintiff sought declarations that The Contractors' and Workmen's Liens Acts, 1906 to 1921 Q., or certain section of them, are invalid, and also a specific declaration that the defendant was not entitled to receive a sum of money (£375) from an "owner" within the meaning of the said Acts. The ground upon which this relief is sought is that the Acts, or the material provisions thereof, are inconsistent with the provisions of the Bankruptcy Act 1924-1960 Cth.

It appears from the statement of claim that the plaintiff is the trustee in bankruptcy of Reginald Arthur James Hutcherson and Norman Clement Newton who, prior to the order of sequestration on 4th June 1959, carried on the business of building contractors under the firm name of "Hutcherson and Newton" (hereinafter referred to as the bankrupts). In the course of their business they had entered into a contract to perform certain building work for Mathers Pty. Ltd. upon land of which that company was the owner and, immediately prior to the sequestration order, a substantial sum of money was due by that company to the bankrupts. In turn, the bankrupts had engaged the defendant company to perform part of the work the subject of their contract. This work was, in fact, performed by the defendant some time before sequestration and the amount to which it became entitled in respect thereof was £375. This amount is still owing. It remains to be said that the work which the bankrupts undertook to perform was "work" within the meaning of the Queensland Acts and the bankrupts and the defendant were respectively "contractors" and a "sub-contractor" within the meaning assigned to those terms by the Acts. Mathers Pty. Ltd. was both an "owner" and "employer".