The Supreme Court’s recent decision in Waterford PPG Pty Ltd v Civil Constructors (Aust) Pty Ltd [2020] QSC 8, provides further clarity as to what is and what is not included as “building work” under the Queensland Building and Construction Commission Act 1991 (Qld) (the Act) – providing essential guidance as to what work requires an appropriate licence under the Act.
Background
Waterford PPG Pty Ltd (Waterford) entered into a contract with Civil Constructors (Aust) Pty Ltd (Civil Constructors) for the construction of roadworks, drainage, sewerage reticulation, water supply, conduits and stormwater quality for a 51 lot subdivision located at Ellen Grove, Queensland.
After a dispute arose following a payment claim and payment schedule being issued, Civil Constructors made an application for adjudication for the disputed owing amount. The adjudicator found in Civil Constructor’s favour and, as a result, Waterford appealed the Adjudicator’s decision to the Supreme Court.
What the Court considered?
Waterford argued that pursuant to s.42 of the Act, Civil Constructors could not carry out “building work” as defined under the Act because they did not hold the necessary licence to conduct sewerage works. Given the breach under the Act, Waterford argued that Civil Constructors had no entitlement to make the application for adjudication and the contract between the parties was unenforceable.
Civil Constructors argued that the sewerage works undertaken were not “building work” for the purposes of s.42 of the Act. Instead, they said the exceptions contained in clause 11 of Schedule 1 of the Act excluded sewerage systems from the definition of “building work”. This was because Civil Constructors did not conduct works which involved a connection of a sewer system to any particular building or proposed building.
What was the decision?
The works undertaken by Civil Constructors involved the installation and connection of waste tanks to the pressure sewer mains in proposed streets within the subdivision.
Civil Constructors’ installation of the waste tanks themselves did not constitute a structure which amounts to connecting a building to a main of that system and rather, fell within the constructions of the sewerage system which requires additional work to be undertaken to connect any building or proposed building.
At the time Civil Constructors undertook the works, there was no proposed building or even the existence of proposed subdivided lots. The Court also considered that if “building work” was to include undertaking work involving the construction of a sewerage system (including the installation of waste tanks and connections to pressure mains), this would specifically defeat the express wording of the exceptions to “building work” as contained clause 11 of Schedule 1 of the Act.
Accordingly, Boddice J dismissed Waterford’s appeal and found:
Civil Constructors did not contravene s.42 of the Act;
Civil Constructors undertook the works pursuant to the contract and therefore was entitled to dispute the payment schedule under the relevant Act; and
The adjudication application was properly made and the adjudicator had jurisdiction to make her decision.
How can Creevey Russell Lawyers assist?
Irrespective of whether you are a Principal or Contractor, the works you are undertaking or works conducted by a contractor may be captured by the definition of “building work” under the Act. This of course is relevant to enforcement mechanisms most appropriate or available should a dispute arise resulting from a payment claim or payment schedule.
If you would like further information, we recommend getting in touch with the team at Creevey Russell Lawyers by contacting our office on (07) 3009 6555 or emailing