What features of any contract, agreement or other arrangement makes it a construction contract as defined in the BIF Act?

The Building Industry Fairness (Security of Payment) Act 2017 (Qld) at section 64 defines a construction contract as meaning “a contract, agreement or other arrangement under which 1 party undertakes to carry out construction work for, or to supply related goods and services to, another party” (emphasis added).

It is those features of undertaking and either: (a) carry out construction work or (b) supply related goods and services, to another party which make a contract, agreement or other arrangement a construction contract.

The term “undertaking” is not defined in the BIF Act, but in Lendlease Engineering Pty Ltd v Timecon Pty Ltd [2019] NSWSC 685 at [87], the Court held that an undertaking of the relevant kind must generally amount to a legally binding obligation, although of course the obligation need not be contractual in nature.

The term “carry out construction work” is defined. It means to carry out the work personally, to directly or indirectly cause it to be carried out or to provide advisory, administrative, management or supervisory services for carrying out construction work: section 64.

In turn, construction work and, separately, related goods and services, are defined in sections 65 and 66. There are several exceptions to what is meant by construction work in particular, and those exceptions have bearing on whether a contract, agreement or other arrangement is a construction contract for the purpose of the BIF Act. See for example section 65(3) of the BIF Act which includes exclusions for certain drilling and extraction activities.