On 28 July 2016 the High Court of Australia granted special leave for the applicant in Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd & Ors [2016] HCA Trans 173 (28 July 2016) to appeal a decision of the New South Wales Court of Appeal, in Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd [2015] NSWCA 288. Leave was granted in respect of two questions, namely whether:

  • the existence of a 'reference date' under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act) was a jurisdictional fact; and
  • certiorari is available for non-jurisdictional error on the face of the record.

This will be the first time the High Court has considered the Act or any other security of payment legislation.

What was the issue?

Reference date

Under the Act a 'reference date' is the date on which a claim for a progress payment may be made in relation to work carried out or undertaken to be carried out (or related goods and services supplied or undertaken to be supplied) under the contract. The contract may set out when a reference date arises, or, if the contract makes no provision, the Act provides a default method for determining the reference date.

Determining the reference date is important because only one payment claim may be validly made in respect of any reference date. Any subsequent payment claims made in respect of a reference date will be void.

If the existence of a reference date is a jurisdictional fact, then it is appropriate for a court to determine that fact.

Certiorari

Certiorari is a general remedy for error. If it was to be decided that certiorari is available for non-jurisdictional error on the face of the record the bases on which an adjudication determination may be challenged are increased.

Who is affected?

Claimants, respondents and adjudicators alike under the Act will be impacted by the High Court's decision.

Differences in approaches to whether the existence of a reference date is a jurisdictional fact and the availability of certiorari for non-jurisdictional error on the face of the record have emerged throughout the various security of payment jurisdictions in Australia. In the special leave hearing counsel directed the court's attention to some of those different approaches in New South Wales, Queensland and Victoria.

The appeal will be heard in October 2016.