Cadia Holdings Pty Ltd v Downer EDI Mining Pty Ltd [2020] NSWSC 1588

Cadia Holdings Pty Ltd v Downer EDI Mining Pty Ltd [2020] NSWSC 1588

The mining exception in s 5(2)(b) was not engaged because the tunnelling, boring and underground construction work required by the Contract was preparatory to, and in anticipation of, the later extraction of minerals, rather than for the actual purpose of extracting minerals. In any event, the Contract included undertakings to perform construction work within s 5(1), such as haulage of excavated material and other integral or preparatory operations, which were not themselves tunnelling, boring or constructing underground works. The Contract was therefore a construction contract, the Act applied, and the adjudicator had jurisdiction. Downer's 8 May 2020 payment claim was served in respect...

Jurisdiction
Australia
Judgment Date
11 November 2020
Procedural Posture
Challenge to Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment on Summons
Outcome
Cadia's challenge to the adjudication determination failed and the proceedings were to be dismissed.
Legal Topics
['security of Payment' 'adjudication Determination' 'construction Contract' 'construction Work' 'mining Exception' 'reference Dates' 'payment Claims']
['building and Construction' 'equity Technology and Construction List'] ['security of Payment' 'adjudication Determination' 'construction Contract' 'construction Work' 'mining Exception' 'reference Dates' 'payment Claims']

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Procedural Posture

Challenge to Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment on Summons

Legal Issues

  1. 1 ['Whether the Contract was a construction contract for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether the work called for by the Contract fell within the mining exception in s 5(2)(b) of the Act as tunnelling, boring or constructing underground works for the purpose of extraction of minerals.' 'Whether the Contract also called for work that was construction work or the supply of related goods and services not caught by the mining exception.' "Whether Downer's payment claim served on 8 May 2020 was served in respect of an available reference date."]

Ratio Decidendi

The mining exception in s 5(2)(b) was not engaged because the tunnelling, boring and underground construction work required by the Contract was preparatory to, and in anticipation of, the later extraction of minerals, rather than for the actual purpose of extracting minerals. In any event, the Contract included undertakings to perform construction work within s 5(1), such as haulage of excavated material and other integral or preparatory operations, which were not themselves tunnelling, boring or constructing underground works. The Contract was therefore a construction contract, the Act applied, and the adjudicator had jurisdiction. Downer's 8 May 2020 payment claim was served in respect...

Court Disposition

Cadia's challenge to the adjudication determination failed and the proceedings were to be dismissed.

Orders

  • ['The summons should be dismissed.' 'The proceedings should be dismissed.' 'The parties should bring in short minutes to give effect to the reasons.']