Most Read Contributor in Australia, September 2016
On 20 December 2013, the Queensland Court of Appeal delivered
two significant decisions in relation to the Building and
Construction Industry Payments Act 2004 (Qld)
(BCIPA). These decisions have important
consequences to Contractors and Principals on the operation of the
J & D Rigging Pty Ltd v Agripower Australia Ltd &
Ors  QCA 406
In J & D Rigging Pty Ltd v Agripower Australia Ltd &
Ors  QCA 406, the Queensland Court of Appeal overturned
the controversial decision of Wilson J that BCIPA did not apply to
work undertaken on land registered as a mining lease as the
construction work did not "form part of the land" as
required by BCIPA.
In overturning this decision, the Queensland Court of Appeal
held that the issue was whether the work forms part of the physical
land upon which it was situated. Accordingly, while a mining lease
may not be legally categorised as "land" the actual land
on which the plant was situated was considered land pursuant to
How does this decision affect Contractors?
This decision clarifies the uncertainty that some Contractors
working on mining tenements may face by reaffirming that they can
indeed make a claim under BCIPA for construction work undertaken on
a mining lease.
In BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty
Ltd & Ors  QCA 394 the Queensland Court of Appeal
overturned a decision of the Supreme Court to award part of the
adjudicated amount in circumstances where portions of the
adjudication determination contained jurisdictional error.
The Court of Appeal held that once an adjudicator's
determination is void due to jurisdictional error, the entire
decision ceases to give rise to any legal consequence. Accordingly,
the Court at first instance was not entitled to exercise its
discretion to award any part payment.
How does this decision affect Principals?
Principals who have received an erroneous adjudicator's
decision involving some jurisdictional error, may rely on this case
to propose that the whole decision should be invalidated and no
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
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