Southern Han Breakfast Point Pty Limited v Lewence Construction Pty Limited

[2015] NSWSC 502

Supreme Court of NSW

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Interrogate

Catchwords

1. BUILDING AND CONSTRUCTION — adjudication determination — jurisdictional error — whether adjudicator committed jurisdictional error due to non-existence of a jurisdictional fact — Building and Construction Industry Security of Payments Act 1999 (NSW) s 8, s 13 — whether existence of a reference date is an essential requirement for a valid payment claim under the Act and consequently for the adjudicator’s jurisdiction
1. ADMINISTRATIVE LAW — natural justice — whether adjudicator denied natural justice to party due to failure to have due regard to submissions — content of duty to provide natural justice dependent on context — whether adjudicator determined dispute on a basis not advocated by either party

Quick Take

The Court held that the existence of a reference date under s 8 of the Building and Construction Industry Security of Payment Act 1999 (NSW) is a jurisdictional fact essential to the validity of a payment claim and consequently to an adjudicator's jurisdiction, rejecting the argument that the words 'or claims to be entitled' in s 13(1) permit a claimant to invoke the adjudication process merely by asserting a reference date has arisen. Where a principal exercises contractual rights under AS 4000 cl 39.4 to take work out of a contractor's hands and suspend payment pending reconciliation under cl 39.6, no reference date can arise because there is no date under the contract on which a claim for progress payment may be made. Similarly, where a contract is terminated (whether by the contractor or the principal), the right to claim payment progressively under cl 37.1 does not survive termination, and no further reference dates accrue.