Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd

[2015] NSWCA 288

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Administrative Law
2. › Jurisdictional error
3. › Jurisdictional fact
4. › Whether existence of reference date under construction contract is jurisdictional fact for adjudicator's determination
5. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 13
1. Statutory Construction
2. › Building and Construction Industry Security of Payment Act 1999 (NSW)
3. › Relationship between ss 8 and 13
4. › Whether 'person referred to in s 8(1)' in s 13(1) requires reference date to have arisen
5. › Whether words 'or who claims to be entitled' permit claim where entitlement disputed
6. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 13
1. Building and Construction
2. › Security of payment legislation
3. › Payment claims
4. › Validity of payment claim
5. › Whether payment claim served in contravention of s 13(5)
6. › Whether second or subsequent claim in respect of same reference date
7. › Building and Construction Industry Security of Payment Act 1999 (NSW), s 13(5)
1. Building and Construction
2. › Security of payment legislation
3. › Reference dates
4. › Effect of termination of construction contract on accrual of reference dates
5. › Effect of taking work out of contractor's hands on reference dates
6. › Building and Construction Industry Security of Payment Act 1999 (NSW), s 8

Quick Take

The existence of a reference date under s 8 of the Building and Construction Industry Security of Payment Act 1999 (NSW) is not a jurisdictional fact. A claimant who falls within s 8(1)(a) or (b) and who claims to be entitled to a progress payment may serve a valid payment claim under s 13(1) even if the existence of a reference date is disputed; whether a reference date has arisen is a matter for the adjudicator to determine, not the court on judicial review. Compliance with s 13(5) (prohibition on more than one claim per reference date) remains a jurisdictional matter, but the onus is on the party challenging the claim to establish contravention.