Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd

The High Court of Australia considered an appeal concerning the interpretation of the *Building and Construction Industry Security of Payment Act 1999* (NSW) and a construction contract between Southern Han Breakfast Point Pty Ltd (in liquidation) ("Southern Han") and Lewence Construction Pty Ltd ("Lewence"). The dispute arose from Lewence's attempt to make a payment claim under the Act after the termination of their construction contract. Southern Han had terminated the contract due to Lewence's alleged substantial breach.

The central legal issues before the High Court were whether the existence of a reference date under the construction contract was a precondition to the making of a valid payment claim under section 13(1) of the Act, and whether Lewence's right to make a progress claim under the contract survived the termination of the contract.

The High Court reasoned that section 13(1) of the Act, which permits a party to serve a payment claim "from time to time", does not require a reference date to exist under the contract for a payment claim to be valid. The Court held that the Act's provisions regarding payment claims and reference dates are distinct from the contractual rights and obligations of the parties. Furthermore, the Court determined that the contract did not contemplate that Lewence's right to make progress claims would survive termination. The Court allowed the appeal, setting aside the orders of the New South Wales Court of Appeal and dismissing Lewence's appeal to that Court. Consequently, Southern Han was awarded costs, and Lewence was ordered to repay a sum of $1,276,000, plus interest, to Southern Han.