Agripower Australia Ltd v J & D Rigging Pty Ltd

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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, 276

Alcan (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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Details
Case
[2013] QSC 164
Decision Date

CaseChat Overview and Summary

Agripower Australia Ltd, the applicant, brought this application against J & D Rigging Pty Ltd, the first respondent, in the Supreme Court of Queensland. The applicant sought to set aside an adjudication decision that had been made in favour of the first respondent. The dispute arose from a contract between the parties for the dismantling and removal of mining plant affixed to land subject to a mining lease. The first respondent issued a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) and an adjudicator decided in its favour. The applicant argued that the contract was not a 'construction contract' as defined in the Act, and therefore the payment claim was not valid.

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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