Before the 2019 security of payment reforms in NSW, the impact of "reference dates" under the Building and Construction Industry Security of Payment Act 1999 (SOP Act) generated considerable confusion. The 2019 reforms removed the concept of "reference date", used to determine the date on and from which a party could claim a progress payment.

For contracts signed post-21 October 2019, recovering a progress payment is more straightforward because the progress payment entitlement is no longer activated by a "reference date". Instead, the statutory entitlement to receive a progress payment is now triggered by the performance of construction work, or the supply of related goods and services, under a construction contract. Claimants can make monthly payment claims (or more frequently if the contract allows) as regulated by the SOP Act.

However, we still see pre-21 October 2019 contracts for which the thorny issue of reference dates arises. A recent example is WACO Kwikform Ltd v Complete Access Scaffolding (NSW) Pty Ltd [2020] NSWSC 1702.

At issue; whether the contract made "express provision" for fixing the date on which a payment claim may be made. The relevant contractual clause provided:

"Claims submitted by the 20th day of the month will, if approved by Waco Kwikform, be paid by the end of the following month. If any part of a claim is not approved then such part will not be paid and the Subcontractor will be provided with the reasons for the non-payment."

Justice Stevenson found that such a term "must be one where a date can be identified from the terms of the contract itself". Here, the clause was not such a term because:

the clause did not "require [the claimant] to make any claim"; the date for such a claim was also at the claimant's discretion. The claimant could make any number of claims up to the 20th day of the month. Stevenson J observed that "multiple claims in one day" were possible.

This finding meant that there was no reference date determined under the contract so that the default timing for reference dates in s 8(2)(b) applied. As a result, WACO was unsuccessful in challenging the adjudication determination.