UPDATE – BUILDING AND CONSTRUCTION INDUSTRY PAYMENTS ACT

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UPDATE – BUILDING AND CONSTRUCTION INDUSTRY PAYMENTS ACT

Queensland Court of Appeal reverses the Supreme Court’s decision of  Agripower Australia Ltd & Ors v J & D Rigging Pty Ltd 

We recently reported that the Supreme Court held that work carried out on land, that was subject to a mining lease, was not ‘construction work’ under the Building and Construction Industry Payments Act 2004 (Qld) (“the BCIPA”) as a result of the Supreme Court’s decision in Agripower Australia Ltd v J & D Rigging Pty Ltd & Ors.

That decision was reversed by the Court of Appeal on 20 December 2013.

Court of Appeal’s decision

The Court of Appeal held that the plant, constructed on the land which was subject to a mining lease, and the fact that a mining lease is not ‘land’ within the meaning of Section 10 of the BCIPA, did not preclude work as being construction work on buildings or structures that form part of land for the purposes of the BCIPA.

The Court of Appeal stated that while mining leases may not be legally categorised as “land”, the physical land on which the building or structure stood did not change its character by reason of the existence of a mining lease.

The Court of Appeal held that the requirements of the law of real property in relation to ownership of things affixed to land were not imported into Section 10 of the BCIPA.  Instead, the degree of annexation to the physical land is the relevant issue of whether or not a thing forms part of the land for the purposes of the BCIPA.

In deciding that the plant formed part of “land”, the Court of Appeal held:

  • The BCIPA applies to construction work on temporary buildings or structures provided they form part of land; and
  • The plant consisted of numerous parts, which were set in or bolted to concrete slabs; and
  • The fact that the plant was affixed to the land for the purpose of stability and efficiency of operation did not preclude a finding that it formed part of land; and
  • Despite the fact that the plant might have to be removed in the future, it did not make it any less a feature of the land to which it was affixed; and
  • Although the plant had to be removed before the mining lease expired, it formed part of the land on which it was constructed due to the nature and degree of the affixation, and until the plant was removed, it continued to form part of the land.

Implications

The Court of Appeal’s decision entitles Claimants to once again claim for monies owed under the provisions of  the BCIPA for certain works conducted on land which is subject to a mining lease.

If you would like more information on these issues or whether your construction work falls within the BCIPA regime, please contact Bruce Johnstone or Mark Taylor for straight to the point, down to earth advice.

 

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