Australian Capital Territory

contractors’ debts act 1897 
This consolidation has been prepared by the ACT Parliamentary Counsel’s Office
Updated as at 8 March 2001
TABLE OF PROVISIONS
Section
	1.	Short title
	3.	Certificate of cause of debt
	4.	Certificate not to be given if workman could have had a lien
	7.	Payment of debt out of moneys due to contractor
	8.	Service of notice to operate as assignment of moneys due to contractor
	9.	Contractee to satisfy debt to workman or tradesman out of moneys due to contractor
	10.	Priority of assignments
	11.	Recovery of moneys assigned
	12.	Assignment ceases to operate on satisfaction of debt
	13.	Workman or tradesman to sign discharge on payment
	14.	Attachment of moneys after notice of action
	15.	Application for leave to serve notice
	16.	Proceedings after judgment
	17.	Contractor to furnish information
	18.	Contractor liable for certain debts of sub-contractor 
	19.	Saving
Second-Sixth Schedules
forms

Australian Capital Territory

contractors’ debts act 1897
An Act to consolidate the Acts for better securing the payment of debts due to workmen, tradesmen, and others3
1. 3 	Short title
	This Act may be cited as the Contractors’ Debts Act 1897.1
3. 3 	Certificate of cause of debt
	If in any proceeding at law in any court of competent jurisdiction in the Territory, any sum is found due and payable by the defendant for work and labour, or for material, or for material and work and labour, done, supplied, or provided by the plaintiff, and the character of the work, or material, and the locality in which the same has been done, supplied, or provided appears from the evidence, a Judge or magistrate of the court shall, upon the plaintiff’s application, sign and deliver to him a certificate of the cause of debts in the form in the Second Schedule, which, for the purposes of this Act, shall be conclusive.
4. 3 	Certificate not to be given if workman could have had a lien
	No such certificate shall be given for any sum due and payable for work and labour if the work appears to have been done upon a movable chattel of such a description that it would be practicable for a workman to have a lien thereon by retaining the same in his actual possession.
7. 3 	Payment of debt out of moneys due to contractor
	If the work done or material supplied be work or material, or part of or incidental to work or material, for the doing or supplying of which any moneys may be due or accruing due to the defendant in such proceeding (hereinafter referred to as the contractor) under any express or implied contract with any third person, the plaintiff in such proceeding (hereinafter referred to as the workman if the sum sued for and found to be due is on account of work done, or as the tradesman if the said sum is on account of material or material and work and labour) may obtain payment of the sum mentioned in the certificate out of such moneys by serving on such third person (hereinafter referred to as the contractee) a notice in the form in the Third Schedule, together with a copy of the certificate issued to him as aforesaid.
8. 3 	Service of notice to operate as assignment of moneys due to contractor
	Upon service as aforesaid, all moneys due or to accrue due as aforesaid from the contractee to the contractor to the amount of the workman’s or tradesman’s debt specified in the certificate shall be deemed to be effectually assigned by the contractor to such workman or tradesman, but subject to any prior assignment thereof under this Act binding upon the contractor and contractee at the time of service being effected on the contractee as aforesaid.
9. 3	Contractee to satisfy debt to workman or tradesman out of moneys due to contractor
	After such service, and until a discharge for the workman’s or tradesman’s said debt in the form in the Fourth Schedule has been produced to, and a copy thereof left with, the contractee, he shall satisfy such debt out of the moneys assigned as aforesaid by paying to the workman or tradesman upon his application the said moneys as they become due and payable.
10. 3 	Priority of assignments
	The priority of assignments as aforesaid shall be determined by the order of service of notice on the contractee, but all notices served within 7 days of the first notice served in respect of the same contractor shall be deemed to have been served at the same time for the purpose of securing the equal distribution of moneys due and accruing due to the contractor amongst all workmen and tradesmen serving notice within such period of 7 days ratably in proportion to the amounts of their respective debts until payment of all in full, and until such period of 7 days has expired the contractee shall not pay any such debt out of the moneys due and accruing due as aforesaid.
11. 3 	Recovery of moneys assigned
	If the contractee fails to pay as aforesaid, the workman or tradesman may sue for and recover in his own name the moneys assigned as aforesaid as if the assignment of the debt due to the contractor were valid at law, and, by any proceeding which the contractor might have taken had there been no assignment under this Act, but subject to any defence which would have been available against the contractor in such proceeding, except a defence founded on the act of the contractee after service upon him of the notice and the copy of the certificate aforesaid.
12. 3 	Assignment ceases to operate on satisfaction of debt
	Upon satisfaction by any other means than as aforesaid of the whole or part of the debt mentioned in any certificate under this Act, or on the setting aside of the judgment or order in respect of which any such certificate was given, any assignment effected under this Act in respect of such debt shall in the whole or in part cease to be operative, but without prejudice to any bona fide payment or other dealing by the contractee on the footing of such assignment prior to notice and sufficient evidence of such satisfaction or setting aside having been given to him, and so far as may be necessary to such payment or dealing such assignment shall continue in force.
13. 3 	Workman or tradesman to sign discharge on payment
	The workman or tradesman shall, upon the request of the contractor or contractee paying to him the debt specified in the certificate, sign a discharge therefor in the form in the Fourth Schedule, and any workman or tradesman refusing to sign a discharge as aforesaid if tendered for signature at the time of payment shall forfeit and pay to the contractor or contractee so tendering a sum equal to the amount of the payment, such penalty to be recoverable in the Magistrates Court.
14. 3 	Attachment of moneys after notice of action
	The workman or tradesman, when, or at any time after, he takes out a summons or plaint against the defendant, may, by leave of the court in which the summons or plaint is taken out, or of the Judge or magistrate thereof, serve a notice of the action upon the contractee specifying the sum sued for.  Such notice shall be in the form contained in the Fifth Schedule or to the effect thereof, and thereupon any moneys due or accruing due by the contractee to the defendant, or so much thereof as the court, Judge, or magistrate shall order, shall be attached and shall remain in the hands of the contractee until judgment is given in the action, unless the said court, Judge, or magistrate shall otherwise order on the application of the contractee, or of the defendant.
15. 3	Application for leave to serve notice
	Leave to serve such notice may be obtained on the ex-parte application of the workman or tradesman, and he shall, in such application prove on oath to the satisfaction of the court, or Judge or magistrate thereof, that the sum sued for is due and owing by the contractor.
16. 3 	Proceedings after judgment
	The plaintiff, in the event of his obtaining judgment against the defendant, shall then proceed by further notice in the form in the Third Schedule as hereinbefore provided.
17. 3 	Contractor to furnish information
	Every contractor against whom a certificate is granted shall on demand furnish to every workman employed by him, and to every tradesman to whom he is indebted for any material, or material and work and labour, a certificate in the form in the Sixth Schedule, and setting forth the name and address of his contractee.  And every contractor refusing or neglecting to furnish, or making any untrue statement in such certificate, shall be liable to a penalty not exceeding 50 penalty units, recoverable in the Magistrates Court.
18. 3 	Contractor liable for certain debts of sub-contractor
	A contractor who sublets any part of the work shall be responsible to the extent provided for by this Act for the wages of the workmen employed by, and for material, or material and work and labour, supplied for the sub-contractor, and a workman employed by, or a tradesman supplying material, or material and work and labour for, a sub-contractor, may proceed against the contractor, as in this Act provided, as if he had been directly employed by, or had directly contracted with, him.
19. 3 	Saving
	Nothing in this Act shall be construed to prejudice any remedy which the workmen or tradesman may have against the contractor in respect of the debt due to him, or, save as expressly provided, to affect any right subsisting under any contract as aforesaid, or otherwise, between the contractor and contractee.

	SECOND SCHEDULE3	Section 3
In pursuance of the Contractors’ Debts Act 1897 I hereby certify that on the
		day of			the sum of $	        was on a proceeding before me ascertained to be due and payable by (a)				     to (b) 
			for work and labour done by him as (c) 		   , (or for material provided by him for, or for material and work and labour provided and done by him for and upon) (d)
As witness my hand
this		day of 		19    .
	(e)
Judge or Magistrate

(a)	Name of defendant.
(b)	Name of plaintiff.
(c)	State generally the actual employment of plaintiff, e.g. bricklayer, labourer, shipwright.
(d)	Describe generally the thing upon or in respect of which the plaintiff has been employed or for which he has provided material.
(e)	Signature.

	THIRD SCHEDULE3	Section 7
To (a)
Take notice that the work (or material, or material and work and labour) specified in the certificate, a copy of which is served herewith, having been done (or provided, or provided and done) in performance of an agreement entered into with you by (b)	, who has failed to pay me for such work (or material, or material and work and labour), you are hereby required under the Contractors’ Debts Act 1897 to pay me on demand the amount specified in the certificate out of any moneys now due or from time to time becoming due from you to the said (c)		under the said agreement, and on your failing so to do, you will under the said Act be liable to legal proceedings at my suit to obtain payment.
As witness my hand
this		day of		19    .
	(d)

(a)	Name and address of contractee.
(b)	Name and address of contractor.
(c)	Name of contractor.
(d)	Signature of workman or tradesman.

	FOURTH SCHEDULE3	Sections 9 and 13
I hereby acknowledge that the debt $		       certified to be due to me by (a)
 		in a certificate issued under the Contractors’ Debts Act 1897 and dated the
 		day of		19    , has been fully discharged.
As witness my hand
this		day of		19    .
	(b)

(a)	Name of contractor.
(b)	Signature of workman or tradesman.

	FIFTH SCHEDULE3	Section 13
In the			Court
Between A.B., plaintiff and C.D., defendant.
To E.F., of
By leave of this Court (or of G.H. a judge of this Court, or J.K. a magistrate of this Court) and on the application of A.B., the plaintiff, you are hereby required to retain in your hands until judgment herein or as this Court otherwise orders all moneys due or accruing due from you to the said C.D., or if the same shall exceed $		then $		thereof.
Dated this		day of 		19    .
Judge (or Magistrate) of the Court.

	SIXTH SCHEDULE3	Section 17
I hereby certify that (a)			       is the contractee of the work (b)
			upon which you (c) are now employed (or:  for which you (d)
		have provided material, or material and labour).
As witness my hand this		day of		19    .
	(e)

(a)	Name and address of contractee.
(b)	State generally the kind of work as in the Second Schedule.
(c)	Name of workman.
(d)	Name of tradesman.
(e)	Signature of contractor.

NOTES
1.	The Contractors’ Debts Act 1897 of the State of New South Wales (No. 29, 1897) as shown in this reprint was one of the laws in force in the Australian Capital Territory before 1 January 1911 and was therefore continued in force by the Seat of Government Acceptance Act 1909 of the Commonwealth.
	The text of the Contractors’ Debts Act 1897 of the State of New South Wales in its application in the Territory as at 10 August 1984 comprises Part 6 of Schedule 2 to the New South Wales Acts Application Act 1984 (No. 41, 1984) as amended, for details of those amendments see (a):
	The Contractors’ Debts Act 1897 of the State of New South Wales in its application in the Territory has been amended since 10 August 1984 as indicated in the Tables below.
	Citation of Laws—The Self-Government (Citation of Laws) Act 1989  (No. 21, 1989) altered the citation of most Ordinances so that after Self-Government day they are to be cited as Acts.  That Act also affects references in ACT laws to Commonwealth Acts.
2.	The Legislation (Republication) Act 1996 (No. 51, 1996) authorises the Parliamentary Counsel in preparing a law for republication, to make certain editorial and other formal amendments in accordance with current legislative drafting practice.  Those amendments make no change in the law.  Amendments made pursuant to that Act do not appear in the Table of Amendments but details may be obtained on request from the Parliamentary Counsel’s Office.
Table 1
Table of Ordinances
Ordinance	Number  
and year	Date of 
notification 
in Gazette	Date of 
commencement	Application, saving or transitional provisions	

Magistrates Court Ordinance 1985	67, 1985	19 Dec 1985	1 Feb 1986 (see Gazette 1986, No. G3, p. 265)
	—	
Self-Government day 11 May 1989
Table 2
Table of Acts
Act	Number  
and year	Date of 
notification 
in Gazette	Date of 
commencement	Application, saving or transitional provisions	

(Reprinted as at 31 July 1992)	
Statute Law Revision (Penalties) Act 1998	54, 1998	27 Nov 1998	Ss. 1 and 2:  27 Nov 1998
Remainder:  9 Dec 1998 (see Gazette 1998, No. 49, p. 1078)	—	
Justice and Community Safety Amendment Act 2001	2001 No 9	8 Mar 2001	sch 1 (amdts 1.1, 1.2, 1.4 and 1.5):  see endnote 3
remainder: 8 Mar 2001
	—	
(a)	Section 2 and the First Schedule were repealed by the New South Wales Acts Application Act 1984.

Table of Amendments
ad. = added or inserted      am. = amended     rep. = repealed      rs. = repealed and substituted

Provision	How affected

ss 5, 6	om 2001 No 9 amdt 1.3
S. 13	am.  No. 67, 1985
S. 17	am.  No. 67, 1985; Act No. 54, 1998

3	Uncommenced amendments
The following amendments have not been included in this republication because they were uncommenced at the republication date:
Justice and Community Safety Act 2001, Act 2001 No 9, (sch 1 amdts 1.1, 1.2, 1.4 and 1.5)

[1.1] 	Title—
	Omit the title, substitute the following title:
“An Act to better secure the payment of debts owing to workers, tradespeople and others”.
 [1.2]	Sections 1 to 4—
	Repeal the sections, substitute the following sections:
“1 	Name of Act
	This Act is the Contractors Debts Act 1897.
“2 	Dictionary
	The dictionary at the end of this Act is part of this Act.
Note 1 	The dictionary at the end of this Act defines certain words and expressions used in this Act, and includes references (signpost definitions) to other words and expressions defined elsewhere in this Act.
For example, the signpost definition ‘contractee—see subsection 4 (1).’ means that the word ‘contractee’ is defined in subsection 4 (1) of this Act.
Note 2	A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Interpretation Act 1967, s 11F and s 11G).
“3 	Certificate of cause of debt
“(1) 	This section applies if the Supreme Court or Magistrates Court finds in a proceeding that an amount is payable by a person (the defendant) for work done, or materials supplied, by someone else (the plaintiff) and the nature of the work or materials, and where the work was done or the materials supplied, appears from the evidence.
“(2) 	On application by the plaintiff, the court must give the plaintiff a certificate of the cause of debt in the approved form.
“(3) 	However, the court must not give a certificate for work done on a moveable chattel if it would be practicable for a person who does work on it to have a lien on it by retaining possession of it.
“(4) 	For this Act, a certificate under this section is conclusive evidence of the matters stated in it.”.
[1.4]	Sections 7 to 19—
	Repeal the sections, substitute the following sections and dictionary:
“4 	Payment of amount owed if defendant has contract with someone else
“(1) 	If an amount is, or may become, payable to the defendant (the contractor) under an express or implied contract with a third person (the contractee) in relation to the work done, or materials supplied, by the plaintiff (or part of or incidental to the work or materials), the plaintiff (if the plaintiff is owed an amount for materials, called the tradesperson and, in any other case, called the worker) may obtain payment of the amount mentioned in the certificate of the cause of debt (the amount of the debt) by serving on the contractee a notice of debt in the approved form, together with a copy of the certificate.
“(2) 	On service of the notice and copy of the certificate on the contractee, any amount that is or becomes payable to the contractor by the contractee under the contract is, to the amount of the debt, taken to have been assigned by the contractor to the worker or tradesperson.
“(3) 	The contractee must satisfy the amount of the debt by paying to the worker or tradesperson any amount that is or becomes payable to the contractor by the contractee under the contract.
“(4) 	However, the obligation to make payments to the worker or tradesperson does not begin until 7 days after service of the notice and ends when the contractee is shown a certificate of discharge for the debt in the approved form and given a copy of the certificate.
“5 	Priority of assignments
“(1) 	The assignment to the worker or tradesperson is subject to any earlier assignment under this Act that is binding on the contractor and contractee at the time of service of the notice of debt on the contractee.
“(2) 	However, if 2 or more notices of debt are served by different people on the contractor under this Act in relation to the contractee within a period of 7 days, the notices are taken to have been served at the same time.
“(3) 	If notices are taken to have been served at the same time, payments of amounts owing to the contractor must be distributed among the people taken to have served a notice of debt on the contractee at the same time in proportion to the amounts mentioned in their notices of debt until the amounts are paid.
“6 	Recovery of amount assigned
“(1) 	If the contractee fails to pay the amount of the debt in accordance with this Act, the worker or tradesperson may sue for and recover, in the worker or tradesperson’s own name, the amount assigned by any proceeding the contractor could have taken against the contractee if there had been no assignment under this Act.
“(2) 	In the proceeding, the contractee may raise any defence that would have been available against the contractor if there had been no assignment under this Act, other than a defence based on anything done by the contractee after service of the notice of debt on the contractee.
“7 	Assignment ceases to operate on satisfaction of debt etc
“(1) 	All or part of the assignment under this Act of the amount of the debt ceases to operate if—
	(a)	the debt is satisfied, in whole or in part, other than in accordance with this Act; or
	(b)	the judgment or order for which the certificate of debt was given is set aside.
“(2) 	However, subsection (1) does not prejudice any honest payment or other dealing by the contractee on the basis of the assignment and the assignment continues in force to the extent necessary to support the payment or dealing if the contractee made the payment or engaged in the dealing before notice and satisfactory evidence of the satisfaction of the debt or setting aside of the judgment or order is given to the contractee.
“8 	Certificate of discharge
“(1) 	The worker or tradesperson must sign a certificate of discharge, in the approved form, for the amount of the debt if—
	(a)	the contractor or contractee pays the amount of the debt; and
	(b)	the contractor or contractee asks the worker or tradesperson to do so.
“(2) 	If the worker or tradesperson refuses to sign a tendered certificate of discharge when asked to do so at the time of payment of the amount of the debt, the worker or tradesperson forfeits, and must pay to the contractor or contractee, a penalty equal to the amount of the debt.
“(3) 	A proceeding may be taken in the Magistrates Court for the recovery of the penalty.
“9 	Attachment after notice of action
“(1) 	When, or any time after, the worker or tradesperson issues an originating process or originating summons against the defendant, the worker or tradesperson may, with the court’s leave, serve notice of the action, in the approved form, on the contractee stating the amount sued for.
“(2) 	On service of the notice, any amount payable, or that becomes payable, by the contractee to the defendant, or so much of any amount as the court orders, is attached and must remain in the hands of the contractee until the court gives judgment in the action, unless the court on the application of the contractee or defendant otherwise orders.
“10 	Application for leave to serve notice of action
“(1) 	The worker or tradesperson may be the only party to the application to serve notice of the action.
“(2) 	The worker or tradesperson must, in the application, prove on oath or affidavit to the satisfaction of the court that the amount sued for is owing by the contractor.
“11 	Proceedings after judgment
 	If the plaintiff obtains judgment against the defendant, the plaintiff must give the contractee further notice in the approved form.
“12 	Contractor to give information
“(1) 	If the worker or tradesperson obtains a certificate of the cause of debt, the contractor must, if asked in writing by the worker or tradesperson, give the worker or tradesperson a certificate, in the approved form, stating the name and address of each contractee of the contractor.
Maximum penalty:  50 penalty units.
“(2) 	A person must not, in a certificate under subsection (1)—
	(a)	state anything that the person knows is false or misleading in a material particular; or
	(b)	omit anything from the certificate without which the certificate is, to the person’s knowledge, misleading in a material particular.
Maximum penalty:  50 penalty units.
“13 	Contractor liable for certain debts of subcontractor
“(1) 	If the contractor sublets any part of the relevant work, the contractor is responsible to the extent provided by this Act for the wages of the workers employed by, and the materials and work supplied for, the subcontractor.
“(2) 	A worker employed by, or a tradesperson supplying material or work for, the subcontractor may proceed against the contractor under this Act, as if the worker or tradesperson had been directly employed by, or had directly contracted with, the contractor.
“(3) 	In this section:
tradesperson—if a person is owed an amount by someone else for work done and materials supplied by the person, the person is a tradesperson.
worker—if a person is owed an amount by someone else for work done, but not for materials supplied by the person, the person is a worker.
“14 	Act not taken to affect other remedies or rights under contract
 	This Act does not affect—
	(a)	any remedy that the worker or tradesperson may have against the contractor for the debt owing to the worker or tradesperson; or
	(b)	any right under a contract or otherwise between the contractor and contractee.
“15 	Approved forms
“(1) 	The Minister may approve forms for this Act.
“(2) 	If the Minister approves a form for a particular purpose, the approved form must be used for that purpose.
“16 	Effect of amendments made by Justice and Community Safety Amendment Act 2001
“(1) 	The amendments of this Act made by the Justice and Community Safety Amendment Act 2001 were made for statute law revision purposes only.
“(2) 	Without limiting subsection (1), it is declared that the amendments did not affect the meaning or operation of the provisions of this Act in force immediately before the making of the amendments.
“(3) 	This section expires 3 years after it commences.
“17 	Forms complying with omitted schedules
“(1) 	For this Act—
	(a)	a document in accordance with the Second Schedule is taken to be a document in the approved form for subsection 3 (2); and
	(b)	a document in accordance with the Third Schedule is taken to be a document in the approved form for subsection 4 (1); and
	(c)	a document in accordance with the Fourth Schedule is taken to be a document in the approved form for subsection 8 (1); and
	(d)	a document in accordance with the Fifth Schedule is taken to be a document in the approved form for subsection 9 (1); and
	(e)	a document in accordance with the Sixth Schedule is taken to be a document in the approved form for subsection 12 (1).
“(2) 	For this section, a reference to a schedule is a reference to a schedule to this Act before the commencement of this section.
“(3) 	This section expires 1 year after it commences.
	“DICTIONARY	(See s 2)
amount of the debt—see subsection 4 (1).
contractee—see subsection 4 (1).
contractor—see subsection 4 (1).
defendant—see subsection 3 (1).
plaintiff—see subsection 3 (1).
tradesperson—see subsection 4 (1).
worker—see subsection 4 (1).”.
[1.5]	Second, Third, Fourth, Fifth and Sixth Schedules—
	Repeal the Schedules.