Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd & Ors

The High Court of Australia considered an appeal concerning the enforceability of an adjudication certificate issued under the *Building and Construction Industry Security of Payment Act 1999* (NSW) (the Act). The parties were Southern Han Breakfast Point Pty Ltd (in liquidation) (the claimant) and Lewence Construction Pty Ltd and Ors (the respondents). The dispute arose from a construction contract where Southern Han sought payment for work done, leading to an adjudication application and certificate. Lewence Construction sought to resist enforcement of the adjudication certificate on grounds related to alleged unconscionability and the claimant's liquidation status.

The central legal issue before the High Court was whether a respondent to an adjudication claim under the Act could resist enforcement of an adjudication certificate on grounds that the claim itself was unconscionable, or that the claimant was in liquidation. Specifically, the Court had to determine if the statutory right to enforce an adjudication certificate under s 25 of the Act was subject to equitable defences, such as unconscionability, or if the fact of the claimant's liquidation could prevent enforcement.

Gageler J, delivering the sole judgment, held that the statutory scheme of the Act, particularly s 25, provided a clear and unqualified right to enforce an adjudication certificate by judgment. His Honour reasoned that the Act's purpose is to ensure rapid cash flow in the building and construction industry, and that allowing defences to enforcement would undermine this purpose. The statutory right to enforce the certificate was not made subject to equitable defences, nor was it affected by the claimant's liquidation status. The Court rejected the argument that the adjudication process was a mere preliminary step and that the substantive rights of the parties were yet to be determined, finding that the Act contemplated immediate enforcement of the certificate.

The High Court allowed the appeal, setting aside the orders of the Court of Appeal and upholding the primary judge's order for summary judgment enforcing the adjudication certificate.