SUPREME COURT OF QUEENSLAND
CITATION:
Agripower Australia Ltd v J & D Rigging Pty Ltd & Ors [2013] QSC 164
PARTIES:
AGRIPOWER AUSTRALIA LTD
(applicant)
v
J & D RIGGING PTY LTD & Ors
(first respondent)
ADJUDICATE TODAY PTY LIMITED ACN 109 605 021
(second respondent)
HELEN DURHAM
(third respondent)FILE NO:
BSC 2128/13
DIVISION:
Trial Division
PROCEEDING:
Originating application
DELIVERED ON:
25 June 2013
DELIVERED AT:
Brisbane
HEARING DATE:
9 May 2013
JUDGE:
Justice Margaret Wilson
ORDER:
1. It is declared that the adjudication decision 1057877_2399 dated 25 January 2013 by the third respondent is void.
2. It is declared that the adjudication certificate issued by the second respondent consequent upon the decision referred to in order 1 is void.
3. The judgment obtained by the first respondent against the applicant in proceeding TS78/13 is set aside.
4. The enforcement hearing summons issued in proceeding TS78/13 is permanently stayed.
5. The sum of $2,604,188.47 paid into the court by the applicant, with accretions, is to be released to the applicant.
6. The first respondent is to pay the applicant’s costs of and incidental to the application, including reserved costs.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the applicant had purchased certain mining plant from a company which had affixed it to land the subject of a mining lease – where the mining lease did not give rise to an interest in the land – where the applicant and the first respondent entered into a contract for the dismantling and removal of the mining plant – where the first respondent delivered a payment claim to the applicant pursuant to the Building and Construction Industry Payments Act 2004 (Qld) – where the Act only provided for payment claims referable to a ‘construction contract’ to carry out ‘construction work’ within the meaning of s 10 of the Act – where the applicant contended that the plant did not ‘form part of land’ within the meaning of s 10 of the Act, and therefore the dismantling and removal was not ‘construction work’ under the Act – whether the mining plant ‘form[ed] part of land’ within the meaning of s 10 of the Act
Acts Interpretation Act 1954 (Qld) ss 4, 14A, 36
Building and Construction Industry Payments Act 2004 (Qld) ss 7, 8, 10, 11, 12, 17,18, 21, 24, 26, 31, 100, Sch 2
Mineral Resources Act 1989 (Qld) ss 6A, 9, 10, 234, 276Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, cited
Attorney-General for NSW v Brewery Employees Union of NSW (1908) 6 CLR 469, cited
Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700, cited
Capricorn Quarries Pty Ltd v Inline Communication Construction Pty Ltd & ors [2012] QSC 388, cited
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, cited
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- Case
- [2013] QSC 164
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the mining plant formed part of the land within the meaning of section 10 of the Act. This was a crucial issue, as it would determine whether the dismantling and removal of the plant constituted 'construction work'. If it did not, the payment claim and the subsequent adjudication decision would be invalid. The court had to consider the definition of 'construction work' and whether it encompassed the dismantling and removal of mining plant from land.
The court held that the mining plant did not form part of the land within the meaning of section 10 of the Act. The court found that the plant was a chattel and not part of the land, as it could be removed without causing damage to the land. The court also found that the contract between the parties was not a 'construction contract' as defined in the Act, as it did not relate to the carrying out of 'construction work'. The court set aside the adjudication decision and certificate, and permanently stayed the enforcement hearing summons. The court also ordered the first respondent to pay the applicant’s costs of and incidental to the application.
The court’s decision was based on a careful analysis of the statutory provisions and the facts of the case. The court found that the mining plant was a chattel and not part of the land, and that the contract between the parties did not relate to the carrying out of 'construction work'. The court’s decision provides guidance on the interpretation of the Building and Construction Industry Payments Act 2004 (Qld) and the scope of its provisions.
Orders
Orders of the court
1. It is declared that the adjudication decision 1057877_2399 dated 25 January 2013 by the third respondent is void.
2. It is declared that the adjudication certificate issued by the second respondent consequent upon the decision referred to in order 1 is void.
3. The judgment obtained by the first respondent against the applicant in proceeding TS78/13 is set aside.
4. The enforcement hearing summons issued in proceeding TS78/13 is permanently stayed.
5. The sum of $2,604,188.47 paid into the court by the applicant, with accretions, is to be released to the applicant.
6. The first respondent is to pay the applicant’s costs of and incidental to the application, including reserved costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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