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[2013] QCA 406
The first instance decision in this very important case has been previously referred to in this publication. The Court of Appeal decision is also likely to generate interest given the large amount of construction work performed in and around mining sites. Given the similarity of legislation across Australia, this latest decision will also be of national importance.
On this appeal the Court considered the scope of the expression “forming, or to form, part of land” in the definition of “construction work” in the Building and Construction Industry Payments Act 2004. The brief facts were that the contract in question provided for the contractor to dismantle and remove to another site, certain mining plant and equipment consisting of a large storage and treatment plant. The plant was designed to be capable of movement from place to place despite its size. The essential question for the Court was whether or not the contracted work was “construction work” which was defined to include, inter alia, the “dismantling of buildings or structures, whether permanent or not, forming, or to form, part of land”. If the work was not within that defined meaning the adjudication decision made in favour of the contractor would have been void. The focus of the decision of the Court was upon the meaning of the expression “forming or to form part of the land” and whether or not that expression imported into BCIPA the common law principles relating to fixtures? The Court of Appeal adopted an intensely purposive approach to the construction of the relevant BCIPA provisions. In doing so, it eschewed the notions that the word “land” in the statute was used in its “legal, technical sense” and that the Parliament intended to import the common law concepts of “fixtures” in that context. It was held that the importation of such concepts was inappropriate when considering statutes which did not deal with property rights but dealt with the rights of contractors to recover payments for the carrying out of construction work. In construing BCIPA the Court held that the “ordinary” as opposed to technical meaning of the word “land” applied and in determining whether or not the structure was part of the land it was not relevant to consider the intention of the parties. The Court provided the guidance about determining the question of whether the structure formed part of the land in the following terms:
“The ordinary meaning of the words in s 10 anticipates a practical inquiry into the physical relationship between an item and land, by asking in the case of s 10(1)(a) whether the building or structure forms, or is to form, part of land. … The inquiry is into the physical state of things, not the intention of parties at the time the building or structure was constructed, possibly many years earlier.”
The Court also rejected the contention that the existence of a Mining Lease over the land in question did not impact upon the construction of the Act and the issue was whether or not the building in question formed part of the physical land. In the result it was held that the temporary structures did form part of the land.