J & D Rigging Pty Ltd v Agripower Australia Ltd

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.