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Pavement works are building works – but we still don't know the status of fauna rope bridges!

Pavement works are building works – but we still don't know the status of fauna rope bridges!

June 14, 2017 10:35 AM | Posted by Allie Flack and Alexandria Hammerton | Print this page

Civil Mining & Constructions Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 at [887] – [906]

 

Significance

The Supreme Court of Queensland confirmed that a contract will be considered a 'building contract' under the Queensland Building and Construction Commission Act 1991 (Qld) if it contains even a minor amount of 'building work'.

Read on for the analysis by Allie Flack and Alexandria Hammerton.

Facts

Wiggins Island Coal Export Terminal Pty Ltd (Principal) engaged Civil Mining & Construction Pty Ltd (Contractor) to perform earthworks and other civil works in relation to the Principal's coal export terminal in Gladstone. Amongst other work the Contractor was required to construct hardstand pavements in three areas and two fauna rope bridges over the inland conveyor.

The Principal admitted that the Contractor was entitled to the payment of interest on any moneys held to be due and payable to the Contractor. The parties disputed the rate of interest which would apply. If the contract was for 'building work' under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), then interest would be paid at the penalty rate prescribed by section 67P of the QBCC Act.

The Contractor claimed that the pavements works were roadworks not intended for public use but were for use by subsequent contractors at the site. The Principal submitted that the pavement work was more correctly characterised as 'excavating' and 'earthmoving' works and were captured by the relevant exemptions in the Queensland Building and Construction Commission Regulation 2003 (Qld) (QBCC Regulation), or, in the alternative, were temporary.

Decision

The Supreme Court of Queensland held that penalty interest was payable pursuant to section 67P of the QBCC Act. Flanagan J found that the pavement works were 'building work' under the QBCC Act.

His Honour held the works were properly characterised as roadworks as opposed to earthmoving or excavation works. His Honour stated that although the pavement works fell under a section titled 'Rail Receive Bulk Earthworks', the work was more than simply earthmoving and excavating, and included works that would appropriately be classified as roadworks. Importantly, his Honour found that there was no evidence to suggest the works were for public use and therefore they were not caught by the roadworks exemption in the QBCC Regulation. Flanagan J also accepted the Contractor's submission that the works were not temporary works as the contract demonstrated they were to be used by subsequent contractors.

Given his Honour's decision in relation to the pavement works, Flanagan J did not have to decide whether the fauna rope bridge work was 'building work' under the QBCC Act.

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