Construction companies in Queensland and New South Wales may no
longer be able to seek adjudication with respect to their work
undertaken on mining leases.
Adjudication determination on payment claim void as it was not
for "construction work"
The Queensland Supreme Court has held in the recent matter of
Agripower Australia Ltd v J&D Rigging Pty Ltd &
Ors  QSC 164 that an adjudication determination in
favour of the contractor concerning a payment claim of $3.1 million
for dismantling of mining plant upon land over which a mining lease
was granted was void, on the basis that the contract was not for
"construction work" within the meaning of section 10 of
the Building and Construction Industry Payments Act 2004
"Land" does not include mining leases
Section 10(1)(a) of the BCIPA provides that construction work
means "the construction, alteration, repair, restoration,
maintenance, extension, demolition or dismantling of any works
forming, or to form, part of
The Court found that:
mining leases were not "land" within the definition
in the Acts Interpretation Act 1954 (Qld) or in accordance
with common law principles. Hence, mining leases were not
"land" within the meaning of the BCIPA;
the mining plant was brought onto the land over which the
mining leases were granted. It had to be removed before the expiry
of the mining leases. Hence, the mining plant may have formed part
of the mining leases, but did not form part of the
thus, it did not constitute "construction work" and
hence, a payment claim could not be made under the BCIPA and the
adjudication determination was void.
The most common "construction work" performed is that
as defined in Sections 5(1)(a), (b), (c) and (e) of the NSW
Security Of Payment Act, which relies on such work
"forming, or to form, part of land".
Companies in NSW performing work on land over which mining
leases are granted may not be able to seek adjudication on
If the Queensland decision is applied in NSW, then construction
companies seeking adjudication with respect to work on land over
which mining leases are granted may be susceptible to challenge.
Obviously, the precise facts relevant to each case must be
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