Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd & Ors

Southern Han Breakfast Point Pty Ltd (the applicant) sought special leave to appeal from a decision of the New South Wales Court of Appeal concerning the operation of the *Building and Construction Industry Security of Payment Act 1999* (NSW). The dispute involved Lewence Construction Pty Ltd (the first respondent) and other parties who had filed submitting appearances. The core of the application concerned the interpretation of the Act, particularly in relation to progress payments and the role of adjudicators.

The High Court was asked to determine two principal legal issues. The first concerned whether the existence of a "reference date" under section 8 of the Act is a jurisdictional fact, a point on which there was a divergence of authority between Queensland and New South Wales courts. The second issue was whether the writ of certiorari is available for non-jurisdictional error on the face of the record, a question that the New South Wales Court of Appeal had consistently held in the negative. The applicant argued that consistency in the interpretation of this significant legislation was crucial for the national economy.

The applicant's primary submission was that the existence of a reference date is a jurisdictional fact, meaning that an adjudicator lacks the power to make a determination if no valid reference date exists. This was contrasted with the Court of Appeal's reasoning, which focused on section 13(1) of the Act and suggested that a claim to entitlement was sufficient for an adjudicator to have jurisdiction, rather than an actual entitlement. The applicant contended that the Court of Appeal, like the adjudicator, had erred by applying the wrong test, focusing on the absence of a contractual provision precluding a reference date rather than the presence of a contractual provision creating one. This error, it was argued, meant that both the adjudicator and the Court of Appeal had incorrectly determined that reference dates continued to arise after the termination of a construction contract where the contract itself made no provision for such continuation. Regarding the second issue, the applicant argued that the New South Wales Court of Appeal's position on certiorari for non-jurisdictional error was inconsistent with the broader jurisprudence of the High Court, which generally allows such review unless expressly excluded by statute.

The Court granted special leave to appeal on the first ground, concerning the reference date, and refused special leave on the second ground, concerning certiorari for non-jurisdictional error. The Court indicated that the primary question of the operation of the legislation was the central issue.