All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd

All Seasons Air Pty Ltd (the applicant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a claim made under the *Building and Construction Security of Payment Act 1999* (NSW). The dispute arose from a building contract between the applicant and Regal Consulting Services Pty Ltd (the respondent), where the applicant had served a payment claim prior to the relevant reference date. The primary judge had found the claim to be invalid.

The central legal issue before the Court of Appeal was whether a clause within the building contract, which deemed the payment claim to have been served on the reference date, could operate to validate a claim that was factually served before that date. This required the court to consider the interplay between the contractual provisions and the statutory requirements of the *Security of Payment Act*.

The Court of Appeal, in dismissing the appeal, reasoned that the *Security of Payment Act* sets out specific requirements for the making of a valid payment claim, including that it must be served on or after the reference date. The court held that a contractual provision purporting to deem a claim served before the reference date as having been served on that date could not override the statutory requirement. To permit such a clause would undermine the legislative intent of the Act, which is to provide a statutory framework for progress payments. The court affirmed that the claim, having been served prematurely, was therefore invalid.

Leave to appeal was granted, but the appeal was ultimately dismissed with costs.