Cheshire Contractors Pty Ltd v Everett [2017] QSC 287 [2018] 3 Qd R 94

SUPREME COURT OF QUEENSLAND CITATION: Cheshire Contractors Pty Ltd v Everett [2017] QSC 287 PARTIES: CHESHIRE CONTRACTORS PTY LTD (ACN 124 700 385) (Plaintiff) v MARK LANSDOWNE EVERETT (Defendant) FILE NO/S: 154 of 2016 DIVISION: Trial PROCEEDING: Claim ORIGINATING COURT: Supreme Court at Cairns DELIVERED ON: 9 November 2017 (ex tempore) DELIVERED AT: Cairns HEARING DATE: 8-9 November 2017 JUDGE: Henry J ORDER: The finding on the question ordered to be determined is: The works referred to in the pleadings which are “building work” as defined in the Queensland Building Services Authority Act 1991 (Qld) were: (1) The road building work completed by the plaintiff prior to 31 December 2011 on the defendant’s land outside the areas of land dedicated as roads for public use shown on survey plan SP273719 (“undesignated road building work”). (2) The construction and installation of two sets of stormwater collection pits, pipes, headwalls and scour protection works under and adjacent to the road built by the undesignated road building work. (3) The installation of a subsoil agricultural pipe drain on the defendant’s land prior to 31 December 2011. CATCHWORDS: CONTRACT – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – where the parties entered into a contract for the performance of certain works in connection with a subdivisional development – whether or not the alleged works referred to in the pleadings were “building work” as defined in the Queensland Building -- 1 of 9 -- 2 Services Authority Act 1991 (Qld) Queensland Building Services Authority Act 1991 (Qld), sch 2, ss 42(3), 44(4) Queensland Building Services Authority Regulation 2003 (Qld) s 5 Uniform Civil Procedure Rules 1999 (Qld), s 483(1) Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330, cited Ooralea Developments Pty Ltd v Civil Contractors (Aust) Pty Ltd & Anor [2013] QSC 254, followed COUNSEL: C E Taylor for the plaintiff C J Ryall for the defendant SOLICITORS: WGC Lawyers for the plaintiff Ascione & Associates for the defendant [1] I am presiding over the part heard trial of a claim and counter claim in respect of moneys owing in connection with the plaintiff’s construction of a road and associated works on the defendant’s property preparatory to development of a rural residential subdivision. [2] I have, pursuant to Uniform Civil Procedure Rule 483(1), ordered a question arising out of the proceeding to be determined separately now rather than at the trial’s conclusion. That question is, which, if any, of the alleged works referred to in the pleadings were “building work” as defined in the Queensland Building Services Authority Act 1991 (Qld)? [3] The construction occurred in two phases, and the defendant concedes because of legislative change the only works to which the question is potentially relevant are the phase 1 works. They had finished by the end of 2011. The works in that phase which the defendant contends were building work as defined in the then Queensland Building Services Authority Act 1991 (Qld) (“the Act”) were listed by the defendant as: “(1) The road building work completed by the plaintiff in the period 4 July 2011 until 31 December 2011 on the defendant’s land outside the areas of land dedicated as roads for public use shown on survey plan SP273719 (the ”road building work”). (2) The construction and installation of two sets of stormwater collection pits, pipes, headwalls and scour protection works under and adjacent to the road built by the road building work. (3) The construction of the stormwater pit between the existing dam and the road. (4) The construction of a subsoil drainage system.” [4] To elaborate a little factually, the road building work in the area which was not dedicated as a road for public use – number (1) in the defendant’s list – gave rise to a section of road (between approximately chainage points 1525 and 1750 in the plan of -- 2 of 9 -- 3 the works) which was but part of a longer road constructed by the plaintiff for the defendant. I will refer to the relevant section of road as the undesignated road. It was completed to subgrade level but on the evidence was obviously the product of significant earthwork, layering and compression. It looked like, and was clearly used as, a road. [5] The second set of works identified in the defendant’s list gave rise to what I will refer to as culverts. By culvert, I mean the combination of these elements: a pipe under the road, headwalls to the pipe at each side of the road, a stormwater collection pit feeding to the pipe on the higher road side and rocks installed near the pipe base on the lower road side for scour protection from water flowing from the drain. [6] Item (3) on the defendant’s list gave rise to what I will describe as the stormwater pit. The works involved the excavation of a dip beneath a dam and the placing of rocks around the resulting basin-like surface. The obvious intention in constructing the stormwater pit beneath the dam was that any water flowing from or near the area of the dam – an area into which water would have flown from elsewhere – would feed into the rock-lined dam stormwater pit, thus capturing and slowing water, mitigating the risk of erosion and flood damage there, and further downhill for that matter. [7] Item (4) on the defendant’s list gave rise to what was described as a length of agricultural drainage pipe, which I will call ag pipe, laid below ground level on what was, at least described by Mr Everett as being, sand (other evidence in the case, describing the laying of similar pipe during phase 2, referred to the use of aggregate) and covered over, to provide subsoil drainage in a particular area of land where the phase 1 works occurred. [8] I have taken the time to describe the resulting product of the four types of work listed by the defendant because the defendant alleges the resulting product in each instance is a fixed structure and thus a building as defined in the Act. This is relevant to one element of whether the work giving rise to each of the alleged structures was building work. [9] Whether the work listed by the defendant was building work as defined by the Act is significant because, if it was, the plaintiff carried it out without an appropriately classed contractor’s licence under the Act and s 42(3) of the Act would disentitle him from the right to be paid for such work, save for some limited categories of cost prescribed in s 42(4). [10] The Act relevantly defines building work at schedule 2: “Building work means – (a) the erection or construction of a building; or … (c) the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or (e) any site work (including the construction of retaining structures) relating to work of a kind referred to above; … -- 3 of 9 -- 4 but does not include work of a kind excluded by regulation from the ambit of this definition.” [11] It is obvious from paragraph (c) of the definition that if the undesignated road was a building then the provision of the culverts was prima facie building work because it would have been the provision of drainage in connection with the building. [12] In respect of the abovementioned definition, it is said by the plaintiff to be a point of some importance that the definition is expressed as not including work “of a kind” excluded by regulation from the definition’s ambit. The point is made that the legislature could simply have used the words “does not include work excluded by regulation from the ambit of this definition.” The inclusion of the words “of a kind”, if those words are to have any work to do, is said by the plaintiff to have the logical consequence that the definition of building work excludes not only work specifically excluded by regulation from the ambit of the definition but also other work which is of the same kind as that which is specifically excluded. I agree. The words “of a kind” are obviously not surplusage. [13] In reaching that view, I am fortified by the obiter of Fraser JA in Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330. In discussing the definition of “building work”, after referring to items in the Queensland Building Services Authority Regulation 2003 (Qld) (”the Regulation”), his Honour observed, at [18]: [I]f the relevant work is “of a kind” described in an item, it is outside the definition of “building work”. It is therefore not necessary that the work be precisely described by the item. [14] The legislature’s inclusion of the words “of a kind”, with the consequence they would be given meaning, is unsurprising given the difficulty in foreseeing descriptions apt to specifically list an almost infinite array of variable possible forms of construction- related work. [15] Before turning to the Regulation, it is timely to first consider the Act’s definition of “building”, given the ubiquitous presence of that word as part of the definition of building works. Schedule 2 of the Act provides: “Building includes any fixed structure. Examples of a fixed structure –  a fence other than a temporary fence  a water tank connected to the stormwater system for a building  an in-ground swimming pool or an above-ground pool fixed to the ground” [16] In this context, “fixed” is an obviously conventional reference to the notion, well known in the law, of property being annexed to land in such a way as to become part of it. So, for example, in Monadelphous Engineering, Fraser JA observed at [30]: -- 4 of 9 -- 5 Consistently with the ordinary meaning of “fixed structure” and with what one would expect in an Act regulating the building industry, the examples suggest that the product of construction work is not within paragraph (a) of the definition of “building work” if it is not fixed to the soil in such a way as to require it to be treated as part of the land rather than as a chattel. [17] As to what is meant by the term “structure”, Daubney J had occasion to consider the point in Ooralea Developments Pty Ltd v Civil Contractors (Aust) Pty Ltd & Anor [2013] QSC 254, a case with some similarities to the present. In a helpful analysis of the provisions I am here concerned with, his Honour observed at [29-34]: “[29] Clearly enough, every building is a structure, but not every structure is a building (in the traditional sense of the word). In Mills & Rockleys Ltd v Leicester City Council, Lord Goddard CJ said: “”Structure” means something which is constructed. It is not everything which is “constructed” that would ordinarily be called a building, but every building is a structure.” [30] The Macquarie Dictionary relevantly defines the noun “structure” to mean “2. Something built or constructed; a building, bridge, dam, framework etc. ... 4. Anything composed of parts arranged together in some way; an organisation.” [31] A “structure” need not even be something in the nature of a building (in its traditional sense). So, for example, in Black v Shaw & Official Assignee, Denniston J had to construe a statute in which “work” was defined to mean, in effect, skilled or unskilled work or labour in connection with, inter alia, “the construction, decoration, alteration, or repair of any building or other structure upon land”. The question for the Court was whether the formation, metalling and construction of a road fell within this definition. His Lordship said: “Can a road be called a ‘structure’ upon land? A structure has been defined, in its most general terms, as a ‘construction of related parts’. That would justify the description of a road unless such a meaning was inconsistent with the context. A road may fairly be described as constructed. We say ‘the Romans constructed roads in Rome which are still in use’. If the ‘structure’ in the section is to be read as ejusdem generis with ‘building’ it would hardly cover a road, but I do not feel bound so to hold it. I think, therefore, I am justified in holding a road to be the construction of a structure upon land.” [32] I will return to the topic of “roads” shortly. [33] The contract in this case expressly provided that the works consisted of, inter alia, “the construction of ... stormwater drainage, sewer and water reticulation ...”. For my part, I see no reason why each of these objects, when constructed and attached to the ground so as to be regarded in law as “fixed”, ought not be regarded as “fixed structures” and therefore within the QBSA Act definition of the word “building”. A structure does not have to resemble in any way a building (in the traditional sense). The question is -- 5 of 9 -- 6 whether the object has been constructed. As Gibbs J (as he then was) said in R v Rose: “The word ‘structure’ in its most natural and ordinary meaning is a building, but the word is capable of having the wider meaning of anything constructed out of material parts, and in that sense undoubtedly will include a machine and a caravan.” [34] That this is the correct approach is confirmed by the examples given in the QBSA Act definition of “building”, none of which could be said to even vaguely resemble a building (in the traditional sense).” (citations omitted). [18] The plaintiff here contends that whether something is a structure may be a matter of degree. The plaintiff cites the Collins Dictionary definition of “structure” as: (1) A complex construction. (2) The arrangement and interrelationship of parts in a construction. [19] The plaintiff contends that, as a matter of degree, none of the product of the works here were complex constructions. I do not accept that is necessarily factually correct but, in any event, reject complexity as a requirement of the word “structure” in the present context. It would have the effect of excluding simple structures. The definition does not suggest any distinction relevant to the level of complexity involved before something which has been constructed can be described as a structure. [20] I am in general agreement with the analysis of Daubney J in Ooralea Developments as to the meaning of “structure”. In the context of the present case, I therefore readily find the undesignated road and its culverts to be fixed structures. [21] More uncertainty attends the installed ag pipe and the stormwater pit. The ag pipe is certainly fixed. Indeed, it is buried. At first blush, the trivial size of the construction involved in the ag pipe and its prefabricated form makes it an improbable candidate for description as a structure. On reflection though, it can be seen that a fixed structure is surely no less a fixed structure by reason of it being a small structure as opposed to a big structure or by reason of it being constructed off site and fixed later rather than built in situ. The installed ag pipe is a fixed structure. [22] As to the stormwater pit, I would not regard an area of excavated land as having been constructed or as being a structure. At best, the installation of rocks might arguably give it a structural quality. However, the extremely limited evidence available in respect of the stormwater pit is silent about how the rocks were positioned. The photographs show that rocks cover the surface of the excavated basin. The probability is they were dumped from the middle outwards and upwards so that the higher rocks remain, by and large, in situ against lower rocks rather than rolling down to the base. The sides of the basin are not so steep though as to suggest the rocks were, in any sense, individually laid or positioned so as to give rise to any structural element. This contrasts with, for example, the building of a drystone rock retaining wall where the combined and considered positioning of rocks is what gives rise to the structural integrity of the wall. It was within the power and interests of both sides in this case to adduce more evidence about the physical appearance of the stormwater pit and I decline -- 6 of 9 -- 7 to draw any inference arising from the limited evidence as against one side or the other. On such evidence as there is I conclude, on the balance of probabilities, that the stormwater pit is not a structure. [23] Turning to the then Regulation and what it excluded from the definition of building work, s 5(1) relevantly provided: “5 Work that is not building work. (1) For the Act, schedule 2, definition building work, the following work is not building work … – (k) construction, extension, repair or replacement of a water reticulation system, sewerage system or stormwater drain, outside the boundaries of private property; (l) construction, maintenance or repair of – (i) a busway or road; or (ii) a tunnel for a busway or road; (m) construction, maintenance or repair of a bridge, other than a bridge on private property; … (s) construction, maintenance or repair of a dam; … (zb) work consisting of earthmoving and excavating; … (zg) laying of asphalt or bitumen...” [24] The above extract does not include much of the content of s 5(1). However, it includes a little more than is potentially directly descriptive of the relevant works here in order to better inform the practical application of the conclusion reached above that building work does not include work excluded by regulation and also does not include work “of a kind” excluded by regulation. What has been included demonstrates a theme running through s 5 distinguishing between construction on public or private property. [25] So, taking the installation of the ag pipe as an example, it might be said it has the potential to be excluded because, while it is not work specifically described in s 5(1)(k), it is arguably work “of such a kind”. However, s 5(1)(k) specifically confines the exception therein to such work “outside the boundaries of private property”. The work in question was on private property. It would be erroneous to ignore that one of the elements necessary for work to be “of a kind” described in s 5(1)(k) is that it would be work of a kind which is “outside the boundaries of private property”. The works installing the ag pipe are not excluded by s 5(1). [26] The same considerations means s 5(1)(k) would not exclude the culverts, assuming they were approached as separate from the road. In my view, they can properly be regarded as part of the undesignated road construction and, if the works giving rise to the undesignated road were excluded by s 5, the works giving rise to the culverts therefore would be too. -- 7 of 9 -- 8 [27] On the face of it, s 5(1)(l) excludes a road, but that merely excites false hope for the plaintiff, promptly removed by s 5(5), which relevantly provides: ““(5) In this section – … road – (a) means an area of land, whether surveyed or unsurveyed – (i) dedicated, notified or declared to be a road for public use; or (ii) taken under an Act, for the purpose of a road for public use; and (b) includes – (i) a street, esplanade, highway, pathway, thoroughfare, toll road, track or stock route; and (ii) a causeway or culvert in, on, or under a road that is associated with the road; and (iii) a structure in, on, or under a road that is associated with the road.” [28] While paragraph (b) of the definition affirms a culvert is included as a road, paragraph (a) reflects the aforementioned public versus private theme. That s 5 specifically limits its exclusionary references to roads as land dedicated, notified or declared to be roads for public use or taken under an Act for the purpose of a road for public use makes plain the undesignated road in question is not a road of a kind excluded by s 5. This conclusion is, in effect, the same as that reached by Daubney J in respect of the undesignated road in Ooralea Developments. I respectfully agree with his reasoning. [29] I record for completeness that I do not regard the undesignated road as excluded under s 5(zb) on the basis it is “work consisting of earthmoving and excavating”. It doubtless involves such work, particularly earthmoving, but it was work consisting of other elements, too, including layered compaction work and the incorporation of the culverts. [30] I also record for completeness, however, that I would have regarded the stormwater pit work, had I found it to be building work, to have been excluded by s 5(zb) on the basis it only consisted of the excavation of a basin and earthmoving by way of the movement of rocks onto the excavated surface. It was that same quality which in any event, caused me to conclude the stormwater pit did not come within the extended definition of building. [31] It follows from these conclusions that I ought make the following finding on the question ordered to be determined. That finding is: The works referred to in the pleadings which are “building work” as defined in the Queensland Building Services Authority Act 1991 (Qld) were: (1) The road building work completed by the plaintiff prior to 31 December 2011 on the defendant’s land outside the areas of land dedicated as roads for public use shown on survey plan SP273719 (“undesignated road building work”). (2) The construction and installation of two sets of stormwater collection pits, pipes, headwalls and scour protection works under and adjacent to the road built by the undesignated road building work. -- 8 of 9 -- 9 (3) The installation of a subsoil agricultural pipe drain on the defendant’s land prior to 31 December 2011. [32] I will hear the parties as to the further progress of the trial and the application within it. -- 9 of 9 --