J & D Rigging Pty Ltd v Agripower Australia Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

J & D Rigging Pty Ltd v Agripower Australia Ltd & Ors [2013] QCA 406

PARTIES:

J & D RIGGING PTY LTD
ACN 075 350 140
(appellant)
v
AGRIPOWER AUSTRALIA LIMITED

ACN 123 823 226
(first respondent)
ADJUDICATE TODAY PTY LIMITED
ACN 109 605 021
(second respondent)
HELEN DURHAM
(third respondent)

FILE NO/S:

Appeal No 6662 of 2013
SC No 2128 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2013

JUDGES:

Holmes JA and Applegarth and Boddice JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Allow the appeal.1.    

The orders made on 25 June 2013 be set aside.2.    

3.    In lieu thereof it be ordered that the application is dismissed and the applicant pay the first respondent’s costs of and incidental to the application, including reserved costs.

Direct that any submissions by the appellant in relation to costs be filed and served by 31 January 2014, and any submissions in reply be filed and served by 7 February 2014.4.    

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the first respondent purchased mining plant and equipment which was affixed to land subject to a mining lease – where the first respondent engaged the appellant to dismantle and remove the plant – where the first respondent did not pay the appellant after being served with a payment claim – where the appellant was successful at adjudication – where the primary judge found that the dismantling of the plant was not “construction work” under a “construction contract” within the meaning of s 10 of the Building and Construction Industry Payments Act 2004 (Qld) and consequently the adjudication decision was void for want of jurisdiction – where the primary judge found that “land” does not include mining leases and the plant did not “form part of land” within the meaning of s 10 – whether the phrase “forming, or to form, part of land” in s 10 imports the common law doctrine of fixtures

Acts Interpretation Act 1954 (Qld), s 32A
Building
and Construction Industry Payments Act 2004 (Qld), s 7, Sch 2

Agripower Australia Ltd v J & D Rigging Pty Ltd& Ors [2013] QSC 164, related
Allen v Feather Products Pty Ltd (2008) 72 NSWLR 597; [2008] NSWSC 259, cited
Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (In liq) (2000) 202 CLR 588; [2000] HCA 25, cited
Attorney-General (NSW) v Brewery Employees’ Union (NSW) (1908) 6 CLR 469; [1908] HCA 94, cited
Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700; [1938] NSWStRp 35, cited
Barker v The Queen (1983) 153 CLR 338; [1983] HCA 18,…

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Details
Case
[2013] QCA 406
Decision Date

CaseChat Overview and Summary

The case of J & D Rigging Pty Ltd v Agripower Australia Ltd involved a dispute over a payment claim for dismantling and removing mining plant and equipment affixed to land under a mining lease. The dispute was heard in the Supreme Court of Queensland. The appellant, J & D Rigging, claimed that the first respondent, Agripower Australia, did not pay for the services rendered after being served with a payment claim. The matter proceeded to adjudication, where the appellant was successful. However, the primary judge found that the dismantling of the plant was not "construction work" under a "construction contract" within the meaning of s 10 of the Building and Construction Industry Payments Act 2004 (Qld), and therefore the adjudication decision was void for want of jurisdiction. The primary judge also found that "land" does not include mining leases and the plant did not "form part of land" within the meaning of s 10.

The legal issues in the case revolved around the interpretation of s 10 of the Building and Construction Industry Payments Act 2004 (Qld) and whether the phrase "forming, or to form, part of land" imports the common law doctrine of fixtures. The appellant argued that the phrase imports the common law doctrine of fixtures, while the first respondent argued that it does not. The court was required to determine whether the dismantling of the plant was "construction work" and whether the plant "formed part of land" within the meaning of s 10.

The court found that the phrase "forming, or to form, part of land" in s 10 does not import the common law doctrine of fixtures. The court held that the primary judge erred in law by failing to have regard to the purpose and objects of the Building and Construction Industry Payments Act 2004 (Qld) and the context in which s 10 was enacted. The court found that the primary judge had failed to have regard to the purpose and objects of the Act and the context in which s 10 was enacted. The court held that the primary judge should have considered the purpose and objects of the Act, which was to provide a statutory mechanism for the recovery of progress payments in the building and construction industry.

The court allowed the appeal, set aside the orders made on 25 June 2013, and ordered that the application be dismissed and the appellant pay the first respondent’s costs of and incidental to the application, including reserved costs. The court directed that any submissions by the appellant in relation to costs be filed and served by 31 January 2014, and any submissions in reply be filed and served by 7 February 2014.

Orders

Orders of the court

Allow the appeal.1.

The orders made on 25 June 2013 be set aside.2.

3. In lieu thereof it be ordered that the application is dismissed and the applicant pay the first respondent’s costs of and incidental to the application, including reserved costs.

Direct that any submissions by the appellant in relation to costs be filed and served by 31 January 2014, and any submissions in reply be filed and served by 7 February 2014.4.

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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