In a recent case of Agripower Australia Ltd v J&D Rigging Pty Ltd, the Supreme Court of Queensland has substantially limited the ability of mining services companies to claim under the Building and Construction Industry Payment Act (BCIPA) in Queensland. The following are the key points arising from this case:
- Under the BCIPA in Queensland, payment claims under BCIPA can be made in respect of “construction work”.
- “Construction work” is defined in BCIPA as construction, repair, demolition, etc of buildings or works “forming part of land”.
- In this case, the Supreme Court essentially found that if construction work is carried out on land which is subject to a mining lease, it cannot form part of land within the meaning of BCIPA. According to the court, this was because a mining lease does not create any interest in the land for the lease holder and also requires the lease holder to remove any building, structures etc constructed on the land at the end of the lease. Therefore, according to the court, any installation of plant or any other construction work on a mining lease land could never be a fixture and therefore could not form part of land.
The practical consequence for mining services companies is that any work carried out on land that is subject of a mining lease is unlikely to constitute “construction work” under BCIPA and therefore, BCIPA cannot be used to make and adjudicate a payment claim. As Queensland’s BCIPA is similar to the relevant legislation in other states (including NSW), the same would apply in other states.