E-ALERT: Everything old is new again?: reference dates and payment claims in a construction contract

As was widely anticipated, on 21 December 2016, the High Court unanimously allowed the appeal in Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52 and firmly re-established the previously accepted view that a reference date is a precondition to the making of a valid payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act)¹.

Brief history of the matter

Southern Han entered into a construction contract with Lewence. The contract provided that payment claims were to be made on the 8th date of each month. The contract also allowed Southern Han to take the work out of Lewence's hands in certain circumstances of unremedied default. The same clause allowed Southern Han to suspend payments in the event that it took the works out of Lewence's hands.