Monadelphous Engineering Pty Ltd and Muhibbah Construction Pty Ltd trading as Monadelphous Muhibbah Marine v Wiggins Island Coal Export Terminal Pty Ltd [2015] QSC 160

Significance

To determine whether a contract is caught under the Queensland Building and Construction Commission Act 1991(Qld) (QBCC Act), it is necessary to identify the object or purpose of a contract.

Temporary works built to facilitate the object or purpose of a contract which is not caught under the QBCC Act is not building work under the QBCC Act.

Facts

Wiggins Island Coal Export Terminal Pty Ltd (defendant) entered into a contract with Monadelphous Engineering Pty Ltd and Muhibbah Construction Pty Ltd (plaintiffs) for the construction of a jetty and wharf (contract).

The contract allowed the defendant to call on the securities provided by the plaintiffs if the defendant had a bona fide claim. The defendant called upon the securities on the basis that the plaintiffs owed liquidated damages.

The plaintiffs claimed that:

  • the defendant was not entitled to call on the securities because it failed to give notice prior to the call as required by section 67J of the QBCC Act; and
  • Part 4A of the QBCC Act applied to the contract because some of the temporary works fell within the definition of building work.

Decision

Philip McMurdo J dismissed the claim on the basis that the contract was not 'a contract for carrying out building work'.

His Honour considered that the word 'for' was used to identify the object or purpose of the contract. Relevantly, the contract was for the construction of a jetty and wharf which was work excluded from the operation of the QBCC Act.

While McMurdo J accepted that a building contract may have 'only some' building work, he did not accept that 'something which was built only to facilitate the construction of the jetty and wharf, rather than as something to have a use after the performance of the contract' could be building work.

As the items of work alleged to be building work by the plaintiffs were only temporary works to assist in the construction of the jetty and wharf, the contract was not a contract for carrying out building work.