Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd

Southern Han Breakfast Point Pty Ltd brought an action against Lewence Construction Pty Ltd, contesting an adjudicator’s determination in a dispute over an alleged breach of a contract for building works. The dispute centred on the interpretation and application of the Building and Construction Industry Security of Payments Act 1999 (NSW) and whether the adjudicator's determination was valid and binding. The primary concern was whether the adjudicator had jurisdiction to make the determination, given that the existence of a reference date was questioned as a jurisdictional fact under the Act.

The court had to determine if the absence of a reference date constituted a jurisdictional error, impacting the adjudicator's authority. Additionally, the court examined whether the adjudicator had acted in a manner that denied natural justice by not adequately considering the parties' submissions. This involved assessing the content of the duty to provide natural justice in the context of the adjudication process, and whether the adjudicator had effectively assessed the dispute based on a foundation that neither party had explicitly advocated.

The court found that the absence of a reference date was not a jurisdictional fact essential for the adjudicator's jurisdiction. It was held that the adjudicator could proceed without a reference date, as long as the claim was made within the statutory period. The court also ruled that the adjudicator had not denied natural justice by failing to consider the submissions. The duty to provide natural justice was contextual, and in this case, the adjudicator's approach did not amount to a breach of natural justice as it did not lead to a manifest injustice. Consequently, the adjudicator's determination was upheld as valid and binding.

The court ordered Southern Han Breakfast Point Pty Ltd to pay Lewence Construction Pty Ltd's costs of the proceeding, including the costs of the appeal. The judgment emphasised the importance of the adjudicator's role in ensuring that disputes are resolved fairly and efficiently, within the bounds of the statutory framework provided by the Building and Construction Industry Security of Payments Act 1999 (NSW).