Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd

The appeal concerned a dispute between Lewence Construction Pty Ltd (the appellant) and Southern Han Breakfast Point Pty Ltd (the respondent) regarding a payment claim made under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The primary legal question before the Court of Appeal of New South Wales was whether the existence of a reference date, as defined in section 8 of the Act, was a jurisdictional fact that had to be established for a valid payment claim to be made.

The court was required to determine whether the Supreme Court had erred in finding that the respondent had made a valid payment claim. This involved an analysis of the statutory scheme of the *Building and Construction Industry Security of Payment Act 1999* (NSW), particularly sections 8 and 13, and whether the absence of a reference date vitiated the entire payment claim process. The core issue was the consequence of a payment claim being made without a preceding reference date, and whether this constituted a jurisdictional error by the respondent.

The Court of Appeal found that the existence of a reference date under section 8 of the Act is a condition precedent to the making of a valid payment claim. The court reasoned that if a payment claim is made without a reference date, it is an invalid claim from its inception, and any subsequent adjudication determination based on such a claim is a nullity. Consequently, the court held that the Supreme Court had erred in its previous determination and allowed the appeal. The court set aside the orders of the Supreme Court and dismissed the summons filed in that court, ordering that funds held in court be paid to the appellant.