Recent judicial development
Is a reference date a precondition to the making of a valid
payment claim? The recent High Court decision for Southern Han
Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty
Ltd [2016] HCA 52 sheds some light. In deciding the case, the
Court found that under s 13(1) of the Building and Construction
Industry Security of Payment Act 1999 (NSW) (the Act), a reference
date is a precondition to the making of a valid payment claim.
The facts
Southern Han and Lewence had entered into a contract for the
construction of a unit block by Lewence at Breakfast Point.
In October 2014, Southern Han issued a show cause notice to
Lewence in accordance with the contract and elected to take the
remaining construction works out of Lewence's hands. Lewence
treated Southern Hands' conduct as repudiation of the contract
and proceeded to terminate the contract on 28 October, 2014.
