Organisations carrying out work in the mining industry may need
to rethink their payment arrangements following the recent Supreme
Court case of Agripower Australia Ltd v J & D Rigging Pty
Ltd & Ors  QSC 164.
In this case, the Court decided that work carried out on land
subject to a mining lease was not 'construction work' under
the Building and Construction Industry Payments Act 2004
Agripower was the owner of a mining plant based at the Skardon
River Mine at Cape York. The land on which the mine is situated is
subject to certain mining leases.
In June 2012, Agripower engaged J & D Rigging to dismantle
and remove a plant located at the mine. On 30 November 2012, J
& D delivered a payment claim to Agripower under the BCIPA
contending that Agripower owed it $3.1 million for construction
Agripower argued that it was not obliged to pay the amount
claimed as the work did not constitute 'construction work'
within section 10 of the BCIPA.
The adjudicator dismissed this argument and ordered Agripower to
pay J & D in excess of $2.5 million.
Agripower commenced proceedings in the Supreme Court of
Queensland seeking a declaration that the adjudication decision was
void on the basis that the work carried out by J & D was not
'construction work' under the BCIPA.
In deciding whether the work carried out by J & D Rigging
was 'construction work', the Court considered whether the
mining plant comprised structures or works that formed part of the
'land', within the meaning of section 10(1) of the
The Court decided that the dismantling works to be carried out
under the contract did not constitute 'construction works'
on the following grounds:
A mining lease does not create an interest in the land over
which the mining lease is granted and therefore does not fall
within the definition of 'land' under the BCIPA.
Although most of the plant was affixed to the land, the
affixation was to stabilise the plant to allow for efficient
operation, rather than to add some additional feature to the land
on which it rested.
The mining plant may have formed part of the mining lease, but
did not form part of the land.
Accordingly, a payment claim could not be made pursuant to the
BCIPA and the adjudicator's decision was declared void.
Organisations involved in the mining and mining services
industries should take note of this decision and review their
payment arrangements to account for the fact that work done for a
mining lease holder may not fall within the ambit of the BCIPA
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