The Trustee for Allway Unit Trust Trading as Westside Mechanical Contracting Pty Ltd v R&D Airconditioning Pty Ltd & Ors - [2018] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
THE TRUSTEE FOR ALLWAY UNIT TRUST TRADING AS WESTSIDE MECHANICAL CONTRACTING PTY LTD v R&D AIRCONDITIONING PTY LTD & ORS
[2018] SASC 46
Judgment of The Honourable Justice Doyle
9 April 2018
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS
Application for judicial review of a determination made by an adjudicator under the Building and Construction Industry Security of Payment Act 2009 (SA) (the SOP Act).
The plaintiff (Westside) subcontracted the first defendant (R&D) to perform mechanical services installation work on a particular project. There were delays in the performance of the work by R&D, and from late October 2017 R&D left the site and did not carry out any further work.
On 8 December 2017, R&D served Westside with a claim for payment of $336,344, endorsed as a payment claim under the SOP Act. Westside responded by way of a payment schedule denying any liability to pay. R&D brought an application for adjudication of its payment claim. The adjudicator issued a determination in R&D’s favour for the amount claimed.
In these proceedings, Westside contends that the adjudicator’s determination was infected by jurisdictional error, including by reason of the absence of an available “reference date” under the SOP Act. The payment claim did not identify any reference date, but the application for adjudication nominated a reference date of 23 December 2017. The adjudicator’s determination was expressed as relating to a reference date of 23 December 2017.
Westside contended that the construction contract between the parties came to an end in late October 2017; that the payment claim could not have a 23 December 2017 reference date; and that it was not possible or permissible to support the adjudicator's determination with some earlier reference date.
Held per Doyle J (allowing the application):
1.      The contract came to an end in late October 2017 (at [79]-[99]).
2.      There was thus no contractually generated reference date of 23 December 2017 (at [106]-[109]).
3.      While 23 October 2017 would have been an available reference date, the application for adjudication and adjudicator’s determination were both predicated upon a 23 December 2017 reference date. The potential availability of a 23 October 2017 reference date was not capable of sustaining, or providing statutory authority to make, a determination predicated upon a 23 December 2017 reference date (at [110]-[131]).
4.      The adjudicator’s determination was affected by jurisdictional error and should be quashed (at [147]).
Building and Construction Industry Security of Payment Act 2009 (SA) ss 3, 4, 8, 9, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 32,33, referred to.
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; Maxcon Constructions Pty Ltd v Vadasz (No 2) (2017) 127 SASR 193, applied.
Patrick Stevedores Operations (No 2) Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014] NSWSC 1413; Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 91 ALJR 233; All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289; Craig v The State of South Australia (1995) 184 CLR 163; Ryder v Frohlich [2004] NSWCA 472; Shevill v Builders Licensing Board (1982) 149 CLR 620; Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; Primelime (NSW) Pty Ltd v BAEC Contracting Pty Ltd [2018] NSWSC 372, discussed.

THE TRUSTEE FOR ALLWAY UNIT TRUST TRADING AS WESTSIDE MECHANICAL CONTRACTING PTY LTD v R&D AIRCONDITIONING PTY LTD & ORS
[2018] SASC 46
Civil
DOYLE J:

These proceedings involve an application for judicial review of a determination made by an adjudicator under the Building and Construction Industry Security of Payment Act 2009 (SA) (the SOP Act).
The plaintiff (Westside) is a subcontractor to Lendlease, the head contractor, for the Department of Defence’s AIR 7000 Project (the Project) at the RAAF Base at Edinburgh, South Australia (the Site).
On 6 October 2016, Westside and the first defendant (R&D) entered into a subcontract (the Contract) for R&D to perform mechanical services installation works on the Project at the Site. The Contract was a lump sum agreement for $1,050,000 plus GST, although there were several variations approved during the course of the Contract.
Between 9 February 2017 and 23 October 2017, R&D submitted 44 progress claims or invoices to Westside, claiming a total of $899,430.13 (including GST). Westside paid R&D $536,386.13 (including GST), leaving an unpaid difference of $363,044.
R&D ceased carrying out work under the Contract in October 2017. The circumstances in which this occurred are considered in detail below. It is sufficient for present purposes to note that the legal status of the Contract by the end of October 2017 is a matter of controversy. R&D contends that the Contract remained on foot. Westside contends that it came to an end by late October 2017, whether through termination, repudiation or agreement.
On 8 December 2017, R&D served Westside with a claim for an amount of $336,344 (including GST). It was endorsed as a payment claim pursuant to the SOP Act.
Westside responded by way of payment schedule dated 19 December 2017, denying any liability to pay the claimed amount and, indeed, claimed an entitlement to set off amounts resulting in a balance owing in its favour.
On 17 January 2018 Westside brought an application for adjudication of its payment claim under the SOP Act. The application was made to the second defendant (Adjudicate Today Pty Ltd), which referred the application to the third defendant (Callum Campbell). Mr Campbell accepted the appointment as adjudicator. On 5 February 2018, Mr Campbell (the Adjudicator) issued a determination dated 2 February 2018 to the effect that R&D was entitled to be paid the sum claimed (the Determination).
In these proceedings, Westside seeks judicial review of the Determination. Westside contends that the Adjudicator made various jurisdictional errors warranting various forms of relief, including an order in the nature of certiorari quashing the Determination.
Central to Westside’s case is a submission that the Adjudicator erred in concluding that R&D’s payment claim had a valid reference date as required by the SOP Act. For reasons that will become apparent, this submission requires consideration of the status of the Contract as at the time of the payment claim. It is thus appropriate to commence with a consideration of the factual background, and in particular the parties’ contractual dealings in October 2017, before turning to the issues arising under the SOP Act.
Background
The material before the Adjudicator included relatively short statutory declarations from some of the key personnel, as well as various of the email and other written communications between them. Westside was represented in the relevant dealings and communications by one of its directors, Wayne Irvine, its general manager, Justin Hollit, and its site manager, Steve Houston. R&D was represented by one of its directors, Ross Brokenshow. The following is a summary of what may be ascertained from the material before the Adjudicator.
The works to be carried out by R&D under the Contract required the installation of ductwork and VAV systems. R&D was delayed in the performance of the works.
According to Mr Brokenshow, R&D and Westside had, prior to execution of the Contract, agreed a proposed allocation of resources by R&D to the works. However, he identified a number of issues that he said caused delay, including lack of access, walls not being completed in a timely fashion by other subcontractors at the Site, penetrations being left out, drafting and manufacturing issues, disorganised and irregular deliveries of materials sourced by Westside to site, and changes to the construction program. He said that these issues were caused by Westside or other subcontractors.
Mr Brokenshow said that, between June and October 2017, he informed Westside on numerous occasions of these issues, and attended meetings with their representatives to resolve and address the issues that in his view were delaying the works. He said that Westside did not acknowledge any contribution on its part to the delays, and requested that R&D allocate more of its resources to the Project. Mr Brokenshow said that his response was to the effect that, because they had agreed the allocation of resources by R&D prior to the execution of the Contract, the allocation of additional resources would require an adjustment to the contract sum by way of a variation and amendment of the payment terms. He said that Westside refused to agree any variation or amendment of the payment terms.
Mr Hollit, who was responsible for managing Westside’s subcontractors on the Project, denied that R&D was delayed by any of the issues identified by Mr Brokenshow. He said that, from about March 2017, there were ongoing productivity and performance issues with R&D, as well as problems with the negative attitude of several of R&D’s personnel on site, and a failure on R&D’s part to adhere to the Project program. He said that he received feedback from Westside personnel and subcontractors on site as to the poor management of R&D’s on site personnel. He said that he also became aware that Mr Brokenshow was experiencing difficulties in his personal life and some mental health issues.
On 15 October 2017, Mr Brokenshow sent Mr Hollit an email in the following terms:
I am writing to you in regard to my ongoing problem with the work at AIR 7000.
My mental health has diminished even more and I am overwhelmed with everything.
I am so sorry to have failed you and everyone else.
I have been put on some medication and I feel even worse, but I will have to see the doctor again on Monday arvo.
If possible could we please meet again to allow me to be released from this project in some form, as we have previously discussed.
Please contact me at anytime to further discuss and again, I am so sorry to have caused such a mess.
On 16 October 2017, Mr Brokenshow and Mr Hollit met to discuss the former’s request in this email “to be released from this project in some form”. Following this meeting, in the evening of the same day, Mr Brokenshow sent Mr Hollit a further email. In that email he commenced by thanking Mr Hollit for the meeting they had had that day, adding that he felt “alot better”. He went on to describe several of the concerns and issues he had with the works and the Project. The email concluded:
I will seriously struggle to employ more than we currently have on site, due to cash flow issues.
As you are aware that due to my nature of trying to maintain positive progress and trying to sort out various issue with Dale and yourself, my mental health has been seriously strained, which is also affected by the financial strains I believe are pending.
Again, I am sorry that I have come to this situation, but am pleased with the fact I have spoken early and that it would appear that we can resolve the install issues.
Please contact me if anything further is required.
On 17 October 2017, Mr Brokenshow sent Mr Hollit a further email. That email forwarded an amended version of his email from the previous evening, with a covering email stating “I have added the request to possibly cancel our contract subject to your acceptance and guidelines”. The forwarded copy of the previous evening’s email had been amended to add the following words (after reference to his concerns about completing the works in a timely fashion):
I would therefore like to take [the] opportunity of closing our contract on 31^st October and our work force employed by Westside as casual.
I would also be aware that you may need to adjust our final October claim reflective of your continued exposure to costing overrun.
Mr Hollit responded with the following email of 17 October 2017:
I understand your preference to cease the site install contract for the Air 7000 project, effective at the end of October 2017.
It is our intention to review the actual progress and understand in detail what is required physically to complete the project, and price the same.
In no way can we guarantee to casually employ your workforce.
While your comments below have some validity, yet, after consultation with Dale, we believe there is, and has been, numerous areas that could have productive installation undertaken.
I am intending to get another subcontractor/s to quote to complete the works from the EOM as you have now confirmed your request to cease your contractual obligations for the Air 7000 project.
Contractually you have not been doing the required hours to maintain programme, and referencing clause 5.3 of our subcontract we have a right to instruct you to accelerate at your cost, as well as employ additional labour at your cost.
Once the scope to finish is known, we will also need to take into consideration an allowance to remedy any defects on works undertaken by you up until the 31^st October 2017. We will need to discuss this.
We will keep you informed on progress and outcomes as they come to hand.
Mr Hollit then instructed Mr Houston to carry out a detailed review of the works completed on site so that Westside could understand the value of the works completed by R&D and the cost to complete the work, compared to the amount that Westside had paid R&D to date.
On 19 October 2017, Mr Hollit sent Mr Brokenshow an email in which he referred to R&D’s request that the Contract “be terminated”, to the steps being taken to obtain a quote from another subcontractor for the work to be completed, to Mr Houston’s review of the works completed, and to some of the payment implications of these matters. The email said:
With you formalising your desire for your subcontract be terminated at the 31^st October 2017, I am writing to advise you that Dale and I will be walking Lee Smith through the Air 7000 Project tomorrow morning to allow Lee to understand the extent of works required to complete the site install component of the project. He will be quoting to do this.
Steve Houston has done a detailed review of works completed on site over the past two days, of which I now have. We will be pricing separately to Lee, to complete the works as well for comparison.
While I have authorised Claire to release several of your smaller invoices for agreed variations, reworks and seismic materials, until we know where we sit with works to complete against costs to complete the project, we will not be able to release any of your September claim. I am hoping to have all of these details tidied up by the end of next week, (before the 31^st October), so we can address how much of your September claim can be released on the due date in early November 2017.
I trust all of the above is clear.
According to Mr Hollit, during the period 17 October 2017 to 26 October 2017, R&D continued to attend the project site, but only to assist the handover of the subcontract works to new subcontractors. R&D did not carry out any work during this time.
On 26 October 2017, Mr Hollit and Mr Brokenshow met on site. According to Mr Hollit, he confirmed to Mr Brokenshow that Westside would be engaging other subcontractors to complete R&D’s outstanding works following R&D’s cancellation of the subcontract, and that due to the status of R&D’s works, Westside would not be paying any further amounts to R&D until the costs of completing R&D works were finalised.
Mr Hollit said that following that discussion, R&D personnel stopped providing assistance to the potential new subcontractors, and ceased carrying out any works on the Site. He said that Mr Brokenshow then approached him on site and requested that R&D be able to leave. He said that because R&D had already requested cancellation of their subcontract, to which Westside had agreed, and R&D were not providing any assistance to Westside, he agreed to Mr Brokenshow’s request. He said that R&D personnel subsequently left the Site at approximately 11.00 am on 26 October 2017, and did not return.
Later that day, Mr Hollit emailed Mr Brokenshow in the following terms (which he described as confirmatory of their discussion earlier in the day):
In referencing below correspondence, and following our earlier discussion, we just wanted to confirm that we will be engaging other subcontractors as per our rights under clause 15 of the subcontract JH3185-1237-01 to complete the site install component of works on the Air 7000 Stage 1 Project, and having any projected costs associated with completing the project recovered from unpaid balance and debt due and payable.
As discussed we will not be able to pay any of the October claim of $165,000.00 + GST, and will confirm prior to the due date for your September claim, how much of that claim we will be able to release.
We will however, review final costs at the completion of the project for site install, and any monies left over for that portion of work may be made available to you.
I will provide details of where I believe the project sits financially for site install by COB tomorrow, as I am hoping to have my quote back for the remote plant rooms by then to tighten up forecasts to complete.
It is with both commercial, and more importantly personal regret that we have not been able to complete this project together.
Finally as discussed, I need to get all relevant Lendlease induction and site access passes returned to me ASAP.
Feel free to call any time.
R&D did not attend the Site after 26 October 2017, and made no request of Westside that they be allowed to return.
On 2 November 2017, Mr Hollit sent Mr Brokenshow an email explaining the status of the works at the end of October 2017:
We have attached the details where the project stands both up until the end of [October], and what we believe it will cost to complete the project from 1^stNovember, being the date you nominated as being when you wanted to terminate the subcontract JH3185-1237-01. Noting that I have already advised that we are unable to pay your October claim of $165,000 + GST.
We have also attached our MYOB printout for your Job Transactions for your reference.
As you will see on attached sheet, we are unable to pay any of your September claim either, as we believe that we are $27,322.50 + GST short from what we have paid to date, and what we believe it will take to complete the project.
I must also note that the attached sheet includes variations yet to be approved so that figure may change as we negotiate with Lendlease to reconcile.
I have spoken at length about this with Allan and Wayne, and they agree that we will welcome you into our office to review the attached and discuss any questions you may have over this.
As I stated below, we are more than happy to review the project at its completion, and if we exceed our expectations for the site install component we will look at paying you any difference.
Thank you and regards.
On 3 November 2017, Mr Brokenshow responded by email. That email included the following:
We have a number of issues with the position you appear to have taken in this matter and wish to take up your offer to discuss them with you at your earliest convenience. Our issues at this junction are summarised as follows. …
We fail to observe any basis in fact to support your assertions that the increased cost to complete for the works is directly related to the percentage completed by R & D. The responsibility for the delays and disruptions incurred resides with [Westside’s] Project management.
The Contract

As mentioned, the Contract was a lump sum contract. It provided in clause 1:
SUBCONTRACT SUM
1.1For the performance of the Subcontract Works in accordance with the Subcontract Westside will pay the Subcontractor the Subcontract Sum.
1.2The Subcontractor acknowledges and agrees the Subcontract Sum is a fixed lump sum price adjustable only in accordance with the Subcontract and is inclusive of all obligations, costs, expenses, risks and unforeseen circumstances associated with the Subcontractor’s performance of the Subcontract.
The obligations of R&D, as subcontractor, were set out in clause 2. Essentially R&D was required to carry out and complete the works under the Contract in accordance with the instructions, and to the satisfaction, of Westside. The scope of works was set out in Schedule 2 to the Contract.
Clause 5 addressed the construction program. It required R&D to perform the work in accordance with the program unless otherwise directed by Westside. Clause 5.3 contained a right on the part of Westside to direct R&D to accelerate the work. It provided:
5.3If, at any time, Westside considers that the rate of progress of the Subcontract Works is not sufficient to enable completion of the Subcontract Works by the Date for Construction Completion for a reason which is within the control of the Subcontractor, Westside may:
(i) direct the Subcontractor to accelerate the Subcontract Works at the Subcontractor’s cost;
(ii) employ at the Subcontractor’s expense other resources to perform part or all of the Subcontract Works.
Clause 9 dealt with progress claims. It provided:
9. PROGRESS CLAIMS
9.1The Subcontractor may submit a payment claim to Westside by the day of the month specified in item 8 of the Subcontract Particulars or by such other date as requested by Westside.
9.2Any payment claim received prior to the day of the month specified in item 8 of the Subcontract Particulars is deemed to have been received on the date as per item 8. Payment claims received after the day of the month specified in 8 will be deemed to be the following month’s payment claim.
9.3A payment claim may only be made if the executed subcontract has been returned to Westside and compliant bank guarantees (if applicable) and proof of the insurance required under the Subcontract have been given to Westside.
9.4 …
9.5Subject to receipt of a valid tax invoice Westside must pay the amount it determines is payable (less any deductions that Westside is entitle to make), no later than 45 days after the last day of the month in which the compliant payment claim was received by the Westside Project Manager. No interest is payable by Westside under or in connection with the Subcontract.
9.6Payment by Westside to the Subcontractor is on account only and does not constitute approval of any work, and admission of the proper performance of the Subcontract confirmation of the accuracy of any claim made by the Subcontractor or of additional or varied work having been directed by Westside.
In the contract particulars, item 8, the time for submission of payment claims was identified as “23^rd day of the month for work done to and including the last day of the month”.
Clause 10 provided for the submission of a final payment claim within 15 days of the works being deemed to be completed. Clause 12 addressed variations to the contract sum.
Clause 15 addressed termination. It provided:
15. TERMINATION
15.1If the Subcontractor commits a breach of the Subcontract Westside may send the Subcontractor a notice specifying the breach.
15.2   A breach of the Subcontract includes but is not limited to:
(i)    a failure to proceed with the works in accordance with the Program;
(ii)     a failure to proceed with the works in a diligent efficient and timely manner where there is no Program;
(iii)    wrongful suspension of the Subcontract Works;
(iv)    a failure to comply with or unreasonable delays in complying with a written instruction given by Westside; and
(v)     inappropriate or unsafe behaviour on Site.
15.3If within three days after the receipt of the notice, the Subcontractor fails to rectify the breach then Westside, (without prejudice to any other rights and remedies) may terminate the Subcontract or remove the whole or part of the works from the control of the Subcontractor. Westside will have the right to engage another Subcontractor to complete the works of the expense of the Subcontractor in breach of this Subcontract.
15.4…
15.5   …
15.6When the Subcontract Works are taken out of the Subcontractor’s hands or the Subcontract is terminated under this clause:
(i)    The Subcontractor must leave site immediately and Westside may take possession and use any of the Subcontractor’s documents, plant, tools, equipment and materials required for the completion of the Subcontract Works. Any documents, plant, tools, equipment and material not incorporated into the Subcontract Works will be returned to the Subcontractor once the Subcontract Works are complete;
(ii)     If the projected cost to complete the Subcontract Works (as assessed by Westside acting reasonably) exceeds the unpaid balance of the Subcontract Sum, Westside is entitled to recover the difference as a debt due and payable. For the avoidance of doubt, Westside may elect to set off or deduct that cost from any monies due from Westside to the Subcontractor and/or from security held by Westside under this Subcontract.
15.7…
Key provisions of the SOP Act
The SOP Act creates what may be described as a parallel regime, separate from the contract, for the prompt making of progress payments under a construction contract. In short, the SOP Act is intended to provide a speedy and effective means of ensuring cash flow to builders from the parties with whom they contract.[1] It does so by creating a regime for enforcing the interim payment of progress claims, without affecting the parties’ ultimate rights under the relevant construction contract in subsequent civil proceedings in respect of that contract.
[1] Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 91 ALJR 233; [2016] HCA 52; All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289 at [8]-[9].
The object and scheme of the SOP Act is summarised in s 3 of the Act. The following is a summary of some of the key aspects of that regime, with a focus upon the provisions relevant to the disposition of this matter.
Part 2 of the SOP Act addresses the right to progress payments. The concept of a progress payment is defined in s 4 in the following terms:
progress payment means a payment to which a person is entitled under section 8, and includes (without affecting any such entitlement)—
(a)     the final payment for construction work carried out (or for related goods and services supplied) under a construction contract; and
(b)     a single or one-off payment for carrying out construction work (or for supplying related goods and services) under a construction contract; and
(c)     a payment that is based on an event or date (known in the building and construction industry as a "milestone payment").
The SOP Act thus applies not only to regular instalment payments under a construction contract, but also to a final payment under the contract and other single or one-off payments.
Section 8 of the SOP Act provides that a person is entitled to a progress payment “on and from each reference date” under a construction contract:
8—Rights to progress payments
On and from each reference date under a construction contract, a person—
(a)     who has undertaken to carry out construction work under the contract; or
(b)     who has undertaken to supply related goods and services under the contract,
is entitled to a progress payment.
The concept of a “reference date” is defined in s 4:
reference date, in relation to a construction contract, means—
(a) a date determined by or in accordance with the terms of the contract as the date on which a claim for a progress payment may be made in relation to work carried out or undertaken to be carried out (or related goods and services supplied or undertaken to be supplied) under the contract; or
(b) if the contract makes no express provision with respect to the matter—the last day of the named month in which the construction work was first carried out (or the related goods and services were first supplied) under the contract and the last day of each subsequent named month.
The Act thus provides for an entitlement to progress payments “on and from each reference date”, with the reference date being determined either by the contractual date on which progress payments may be made, or, in the absence of any contractual date, the last day of each month. It will be necessary to return to the significance of the reference date later in these reasons.
The amount of the progress payment to which a person is entitled under s 8 is determined by s 9:
9—Amount of progress payment
The amount of a progress payment to which a person is entitled in respect of a construction contract is to be—
(a) the amount calculated in accordance with the terms of the contract; or
(b) if the contract makes no express provision with respect to the matter—the amount calculated on the basis of the value of construction work carried out or undertaken to be carried out by the person (or of related goods and services supplied or undertaken to be supplied by the person) under the contract.
The due date for payment is dealt with in s 11 of the SOP Act, which relevantly provides:
11—Due date for payment
(1)     A progress payment under a construction contract becomes due and payable—
(a)on the date on which the payment becomes due and payable in accordance with the terms of the contract; or
(b)if the contract makes no express provision with respect to the matter—on the date occurring 15 business days after a payment claim is made under Part 3 in relation to the payment.
(2)     Interest is payable on the unpaid amount of a progress payment that has become due and payable at the rate—
(a)prescribed under the Supreme Court Act 1935 in respect of judgment debts of the Supreme Court; or
(b)     specified under the construction contract,
whichever is the greater.
Part 3 of the SOP Act addresses the procedure for recovering progress payments. It relevantly provides:
13—Payment claims
(1) A person referred to in section 8 who is or who claims to be entitled to a progress payment (the claimant) may serve a payment claim on the person who, under the contract concerned, is or may be liable to make the payment.
(2)     A payment claim—
(a)must identify the construction work (or related goods and services) to which the progress payment relates; and
(b)must indicate the amount of the progress payment that the claimant claims to be due (the claimed amount); and
(c)     must state that it is made under this Act.
(3)     …
(4)     A payment claim may be served only within—
(a)the period determined by or in accordance with the terms of the construction contract; or
(b)the period of 6 months after the construction work to which the claim relates was last carried out (or the related goods and services to which the claim relates were last supplied),
whichever is the later.
(5)     A claimant cannot serve more than 1 payment claim in respect of each reference date under the construction contract.
(6)     However, subsection (5) does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim.
14—Payment schedules
(1)     A person on whom a payment claim is served (the respondent) may reply to the claim by providing a payment schedule to the claimant.
(2)     A payment schedule—
(a)     must identify the payment claim to which it relates; and
(b) must indicate the amount of the payment (if any) that the respondent proposes to make (the scheduled amount).
(3)     If the scheduled amount is less than the claimed amount, the schedule must indicate why the scheduled amount is less and (if it is less because the respondent is withholding payment for any reason) the respondent's reasons for withholding payment.
(4)     If—
(a)     a claimant serves a payment claim on a respondent; and
(b) the respondent does not provide a payment schedule to the claimant—
(i) within the time required by the relevant construction contract; or
(ii) within 15 business days after the payment claim is served, whichever time expires earlier,
the respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates.
Sections 15 and 16 deal with the consequences of not paying the claim where there is no payment schedule, and of not paying the claim in accordance with the payment schedule.
Section 17 addresses the process for an application for adjudication of a payment claim where the amount in the payment schedule is less than that claimed, or has not been paid. The application must, inter alia, identify the payment claim and payment schedule (if any) to which it relates, and may contain submissions relevant to the application.
The adjudication process is governed by ss 18-21. Those sections provide for the appointment of an adjudicator (ss 18-19), the lodging of an adjudication response by the respondent containing any submission it chooses to include (s 20), and the procedures that the adjudicator must or may adopt (s 21).
Section 22 provides for the Adjudicator to make a determination:
22—Adjudicator's determination
(1)     An adjudicator is to determine—
(a) the amount of the progress payment (if any) to be paid by the respondent to the claimant (the adjudicated amount); and
(b)the date on which any such amount became or becomes payable; and
(c)     the rate of interest payable on any such amount.
(2)     In determining an adjudication application, the adjudicator is to consider the following matters only:
(a)     the provisions of this Act;
(b) the provisions of the construction contract from which the application arose;
(c)the payment claim to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the claimant in support of the claim;
(d) the payment schedule (if any) to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the respondent in support of the schedule;
(e) the results of any inspection carried out by the adjudicator of any matter to which the claim relates.
(3)     The adjudicator's determination must—
(a)     be in writing; and
(b) include the reasons for the determination (unless the claimant and respondent have both requested the adjudicator not to include those reasons in the determination).
(4)     …
(5)     If the adjudicator's determination contains—
(a)     a clerical mistake; or
(b)     an error arising from an accidental slip or omission; or
(c) a material miscalculation of figures or a material mistake in the description of a person, thing or matter referred to in the determination; or
(d)a defect of form,
the adjudicator may, on the adjudicator's own initiative or on the application of the claimant or the respondent, correct the determination.
Sections 23 and 24 then address the obligation to pay any adjudicated amount, and the consequences of not doing so; and s 25 addresses the filing of an adjudication certificate or cost certificate as a judgment debt.
Under s 33 of the SOP Act, the provisions of that Act have effect despite any provision to the contrary in any contract. Section 32 provides that subject to this qualification, nothing in the SOP Act affects any right that a party to a construction contract may have under that contract. Nor does anything in the Act have any effect on civil proceedings arising under a construction contract, save that a court or tribunal is required to allow for any amount paid to a party under, or for the purposes of, the SOP Act in any order or award it makes, and may make an order for the restitution of any amount so paid having regard to its decision in those proceedings.
R&D’s payment claim
As mentioned, R&D rendered various invoices for progress claims during the course of its work under the Contract. The final four progress claims came in the following invoices:
·Invoice 949055 dated 24 September 2017 -       $181,500
·Invoice 949056 dated 24 September 2017   -       $    9,020
·Invoice 949063 dated 23 October 2017       -       $126,544
·Invoice 949064 dated 23 October 2017       -       $ 55,000
Total  $372,064
These progress claims were made under clause 9 of the Contract, and were thus each deemed to have been made on 23 October 2017. They included amounts for R&D’s work through to the end of October 2017. They were not endorsed as payment claims under the SOP Act. When R&D ceased work under the Contract in late October 2017, these progress claims had not been paid.
By letter dated 8 December 2017 from R&D to Westfield, R&D made a claim that was endorsed as a payment claim under the SOP Act. It sought an amount of $336,344 (including GST). It was said to comprise the total of the four invoices mentioned above, less a credit note dated 8 December 2017 in the amount of $35,720. By way of explanation of the credit note, the letter noted that the invoices had included work up to 31 October 2017; but that as R&D had vacated the Site by 11.00 am on 26 October 2017, there was a credit for the remaining days in that month.
R&D responded by way of a payment schedule dated 19 December 2017. It contained a denial that the progress claim in the 8 December 2017 letter was a valid payment claim under the SOP Act for the following reasons:
1. It did not identify a reference date as required by the SOP Act. It noted that the invoices comprising the progress claim had various dates (24 September 2017, 23 October 2017 and 8 December 2017), but did not specify any reference date for the purposes of the Act.
2. If the reference date were asserted to be 8 December 2017, then this would be an invalid reference date as it occurred after the termination of the Contract. R&D had abandoned and repudiated the Contract, with the repudiation accepted by Westside and taking effect on 31 October 2017. No reference date could arise after termination of the Contract.
3. If the reference date were asserted to be 24 September 2017 or 23 October 2017, then the claim was an invalid claim under the SOP Act as it purported to include works which had occurred after those dates.
The payment schedule went on to note that in the event that the payment claim was determined to be a valid payment claim under the SOP Act, there was an enclosed schedule in response, which detailed the basis for contending that R&D owed Westside an amount of $30,593.75 inclusive of GST. The $30,593.75 was calculated by determining the total remaining to be paid under the Contract ($741,531.25, being the total contract sum after variations of $1,223,880 less the $482,348.75 paid to date) and subtracting this from Westside’s estimate of the cost to complete of $772,125.[2]
[2] Calculated based upon a quotation from a new subcontractor and some further estimates from Westside.
On 17 January 2018, R&D brought an application for adjudication under the SOP Act. In the application form R&D gave the payment claim date of 8 December 2017, and nominated a reference date of 23 December 2017. It claimed an amount of $336,344 (inclusive of GST).
In its submissions in support of the application for adjudication, R&D contended that while the payment claim had not identified a reference date, this was not necessary under the SOP Act. It was enough that it was a payment claim “with respect to the reference date of 23 December 2017, being a date determined by or in accordance with the terms of the Contract as the date on which a claim for a progress payment may be made in relation to work carried out or undertaken to be carried out under the Contract” (thus picking up the first limb of the definition of reference date from s 4 of the SOP Act).

R&D’s primary contention was that the Contract had not been terminated as Westside had not given any notice under clause 15 of the Contract of its intention to terminate or to take the work out of the hands of R&D. Rather, Westside had simply asked R&D to leave the Site (which it had agreed to do), and appointed another subcontractor to complete the work under the Contract without giving the requisite notice. R&D contended in the alternative that, even if the Contract had been terminated, unless it contained a clause stating that no further progress claims could be made following termination, which it did not, then reference dates continued to accrue.[3] Thus it was entitled to rely upon a reference date of 23 December 2017.
[3] Citing Patrick Stevedores Operations (No 2) Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014] NSWSC 1413 at [28]-[29].
In its adjudication response of 25 January 2018, Westside made various submissions in opposition to the payment claim. It contended that the Contract had come to an end, either by reason of repudiation by R&D, which was accepted by Westside taking effect from 31 October 2017, or by the parties agreeing to cancel the Contract from that date. The consequence of this was said to be that while the rights and obligations that had already accrued under the Contract remained unaffected, no further rights had accrued, or could accrue, to the parties. No further reference dates could arise under the Contract,[4] and hence there could be no valid payment claim under the SOP Act.
[4] Citing Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 91 ALJR 233; [2016] HCA 52.
Westside made the further contention that even if the Contract had remained on foot, the 8 December 2017 payment claim was invalid because it was premature. Section 8 of the SOP Act only permitted a valid payment claim to be served “on and from” a reference date (here, 23 December 2017) and it was not possible to rely upon a contractual deeming provision such as clause 9.2 in order to deem the service of the payment claim to have occurred on 23 December 2017.[5]
[5] Citing All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289.
Westside’s submissions also complained about the adequacy of the material advanced in support of the work said to have been performed, contending that the Adjudicator could not be satisfied as to the value of the work claimed by R&D, and thus could not make a determination for the claimed amount. Finally, Westside contended that it was entitled to set off its estimate of the cost to complete of $772,125 (per its payment schedule), thus reducing R&D’s entitlement under the payment claim to nil.
The Adjudicator’s Determination
The Adjudicator’s Determination is dated 2 February 2018.
Having satisfied himself there was a construction contract in accordance with the SOP Act, the Adjudicator then addressed Westside’s submissions to the effect that there was no valid payment claim under the SOP Act by reason that:
(a) the payment claim failed to identify a reference date;
(b) no reference dates arose after termination of the Contract; and
(c) if the reference date was 24 September 2017 or 23 October 2017, the payment claim as a whole was invalid as it included work which occurred after those two dates.
As to submission (a), the Adjudicator reasoned that the SOP Act did not require that a reference date be identified in the payment claim itself. While there needed to be a reference date in existence, this was a matter that could be addressed, for example, through the adjudication application.
As to (b), the Adjudicator summarised the parties’ submissions in relation to the status of the Contract. The Adjudicator then reasoned that there was no evidence that the contractual mechanism for termination had been complied with. In particular, Westside had not provided notice of a breach under clause 15. The Contract had thus not been validly terminated.
The Adjudicator was also not satisfied on the evidence before him that R&D had repudiated the Contract, or that there had been any mutually agreed cancellation of the Contract. The Adjudicator observed that while there was evidence of delays, of a request to cancel the Contract, and of R&D leaving the Site, there was also evidence that the parties wished to discuss the possibility of R&D concluding the works, the possibility of R&D continuing to work as a team of casuals, and the possible strategies to address issues on the Project Site. Having referred to various aspects of the materials before him, the Adjudicator concluded that he was “not satisfied on the materials before him” that R&D had repudiated the Contract or that it was mutually cancelled.
The Adjudicator reasoned from the above, and from his implicit conclusion that the Contract thus remained on foot, that the payment claim was valid and referrable to an available reference date, pursuant to clause 9.1 of the Contract, namely 23 December 2017.
As the Adjudicator was satisfied that 23 December 2017 was an available reference date, he considered it unnecessary to address Westside’s submission (labelled ‘(c)’ above) that 24 September 2017 and 23 October 2017 were not valid reference dates. The Adjudicator also rejected the submission that the payment claim was invalid on account of it being served prematurely. He relied in this respect upon clause 9.2 of the Contract, which provided that “any payment claim received prior to the day of the month specified in item 8 of the subcontract particulars is deemed to have been received on the date as per item 8”, namely the 23^rd day of the said month. The payment claim was therefore not invalid on account of it being premature.
The Adjudicator next addressed Westside’s submission in its adjudication response that the contract works were only 30 per cent complete. He referred to the evidence of Mr Houston to this effect, which was based on him having walked the Project Site, and having obtaining estimates of the cost to complete. The Adjudicator referred to the absence of a contractual basis for setting off these costs; adding that the clause 15 set-off provisions had not been enlivened due to non-compliance with the notice provisions of that clause. Likewise, there was no basis in the SOP Act for setting off these amounts.
The Adjudicator returned to the evidence that R&D had done the work claimed for, and had rendered four invoices, together with a credit note. He was not persuaded it was appropriate to now use some different method of valuing the work to permit a reduction in the payment claim.
Finally, the Adjudicator also referred to the submissions made by Westside adopting a percentage completion method of valuing the works. The Adjudicator said that this challenge to the payment claim was not raised in the payment schedule and so, in accordance with s 20(4) of the SOP Act, was not able to be relied upon as a reason for withholding payments. The Adjudicator said he would therefore disregard that material.
The Adjudicator ultimately concluded that R&D was entitled to an adjudicated amount of $336,344, including GST. The payment was due on 14 February 2018, being 45 days after the end of the month (December) in which the payment claim was served. Interest was payable at the rate prescribed by the Supreme Court Act 1935 (SA).
Judicial review of an adjudicator’s determination
It is now clear from the authorities,[6] and accepted by the parties, that judicial review of an adjudicator’s determination under the SOP Act is confined to review for jurisdictional error. It does not extend to review for non-jurisdictional error of law on the face of the record, let alone any other error of fact or law that an adjudicator might have made when acting within jurisdiction.
[6] Culminating in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4.
Various definitions or descriptions of what may amount to jurisdictional error have been offered in the authorities.[7] It involves an error which has the effect of causing the repository of statutory decision-making authority to act in excess of, or alternatively to fail to exercise, its authority. For example, an erroneous view of the law might lead the repository to consider and determine a question different from the question which the repository was statutorily authorised to consider and determine, to fail to take into account some statutorily mandated consideration, or to take into account some statutorily impermissible consideration.[8] Jurisdictional error includes an error in relation to a “jurisdictional fact”. As the High Court explained in Gedeon v Commissioner of the New South Wales Crime Commission,[9] this expression is generally used to identify a criterion the satisfaction of which enlivens the exercise of a statutory power or discretion in question. If the criterion is not satisfied, then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision-maker.[10]
[7]    For example, in Craig v The State of South Australia (1995) 184 CLR 163 at 175-180.
[8]    Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 at [65].
[9]    Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120.
[10] Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 at [43].
In cases where the common law presumptions of statutory interpretation support the implication of conditions of reasonableness and procedural fairness, then the making of an unreasonable decision and a failure to afford procedural fairness will be further species of jurisdictional error.[11]
[11] Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 at [71], [75].
In Maxcon Constructions Pty Ltd v Vadasz (No 2),[12] Blue J provided the following non-exhaustive list of matters that define or affect the jurisdiction of an adjudicator under the SOP Act:[13]
[12] Maxcon Constructions Pty Ltd v Vadasz (No 2) (2017) 127 SASR 193.
[13] Maxcon Constructions Pty Ltd v Vadasz (No 2) (2017) 127 SASR 193 at [119] (omitting citations).
There are several provisions of the Act which define or affect the jurisdiction of an adjudicator and the criteria enlivening the exercise of jurisdiction by an adjudicator. Without necessarily being exhaustive, they may be assumed to include:
1the existence of a construction contract (as defined in section 5) between the parties;
2service by a claimant of a payment claim in accordance with subsection 13(2) within the time limit in subsection 13(4);
3application in writing by a claimant for adjudication of a payment claim made to an authorised nominating authority in circumstances prescribed by subsection 17(1) and (2) within the time limit in subsection 17(3)(c), (d) or (e) identifying the payment claim and the payment schedule (if any) to which it relates;
4the adjudicator is eligible under section 18 and appointed by the chosen authorised nominating authority and accepts appointment pursuant to section 19;
5the adjudicator determines the amount of the progress payment (if any) to be paid by the respondent to the claimant, the date on which it became or becomes payable and the rate of interest payable thereon in accordance with subsection 22(1);
6the adjudication determination is in writing and includes the reasons for the determination in accordance with subsection 22(3);
7the adjudicator considers only the matters identified in subsection 22(2) and considers an adjudication response only if it is made within the time limit in subsection 21(2) and a payment schedule was served within the time limit in subsection 14(4) and where applicable section 17(2)(b).
In Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd[14] the High Court accepted that the existence of an (available) reference date was a matter going to the validity of a payment claim, and hence the jurisdiction of the Adjudicator. The Court explained:[15]
The description in s 13(1) of a person referred to in s 8(1) is of a person whom s 8(1) makes entitled to a progress payment. Section 8(1) makes a person who has undertaken to carry out construction work or supply related goods and services under a construction contract entitled to a progress payment only on and from each reference date under the construction contract. In that way, the existence of a reference date under a construction contract within the meaning of s 8(1) is a precondition to the making of a valid payment claim under s 13(1).
That construction of s 13(1) affords to s 13(1) an operation that is harmonious with s 13(5). Section 13(1) operates to require that each payment claim be supported by a reference date and s 13(5) operates to require that each reference date support no more than one payment claim. Section 13(5) has been held to produce the result that “a document purporting to be a payment claim that is in respect of the same reference date as a previous claim is not a payment claim under the [Act]”. Section 13(1) correspondingly produces the result that a document purporting to be a payment claim that is not in respect of a reference date is not a payment claim under the Act. The document is ineffective in either case to trigger the procedure established by Pt 3.
[14] Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 91 ALJR 233; [2016] HCA 52.
[15] Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 91 ALJR 233; [2016] HCA 52 at [61]-[62] (omitting citation).
Westside’s application for judicial review
In its statement of grounds in these proceedings, Westside contended that the Adjudicator’s Determination was infected by several jurisdictional errors. Westside’s contentions may be summarised as follows:
1.   The Adjudicator erred in concluding that the payment claim had a valid reference date. The Contract had been terminated, repudiated or mutually cancelled with the result that 23 December 2017 was not an available reference date.
2.   The Adjudicator failed to consider in a bona fide way, or at all, Westside’s contention that R&D had failed to establish the amount of its claim.
3. The Adjudicator erred in having regard to materials outside those that the Adjudicator was permitted to rely upon under s 20(c) of the SOP Act.
4.   The Adjudicator’s decision was otherwise unreasonable, or involved a breach of procedural fairness.
Status of the Contract from late October 2017
The legal status of the Contract following the parties’ dealings and communications of late October 2017, is not, of itself, a matter determinative of the Adjudicator’s jurisdiction. Thus, if the Adjudicator erred in concluding that the Contract remained on foot, then this would not, of itself, involve jurisdictional error.
However, the existence or availability of a reference date is a precondition to the existence of a valid payment claim and hence a matter going to the Adjudicator’s jurisdiction. And because the status of the Contract from late October 2017 is relevant to the existence of a reference date, it is a matter that I must consider as an aspect of my consideration of the parties’ competing submissions in relation to the existence of a reference date. It is thus convenient to commence by considering this issue.
R&D sought to uphold the Adjudicator’s finding that the Contract remained on foot after October 2017, and indeed remained on foot as at December 2017 when it served its payment claim under the SOP Act. In contending that the Contract came to an end following the events of late October 2017, Westside’s primary contention was that it terminated the Contract (and took the balance of the contract works out of R&D’s hands) under clause 15 of the Contract. In the alternative, it submitted that the Contract was repudiated by either it or R&D. In the further alternative, it submitted that the Contract was mutually cancelled.
There is little doubt that from at least the time when R&D left the Site on 26 October 2017, both parties acted on the basis that their contract was at an end. It would be a surprising and somewhat artificial outcome were the law to take a different view as to the status of the Contract. To borrow (and adapt) the words of Ipp JA in Ryder v Frohlich,[16] whatever legal label one may choose – acceptance of repudiation, agreement by conduct, abandonment, or some other doctrine – common sense would rebel against the notion that one of the parties could now be permitted to assert that the Contract had not come to an end. That said, given the relatively informal manner in which the parties conducted themselves in the second half of October 2017, and the limited nature of the materials before the Adjudicator, the legal analysis of the events that occurred is not entirely straightforward.
[16] Ryder v Frohlich [2004] NSWCA 472 at [12].
I address first the suggestion of repudiation. Westside initially relied upon a contention that R&D repudiated the Contract through Mr Brokenshow’s emails and conduct in the second half of October 2017, and that Westside accepted this repudiation by permitting R&D to leave the Site, and abandon the contract works, on 26 October 2017. I do not accept this contention. Mr Brokenshow’s communications did not rise any higher than an expression of a desire to be released from the Contract, and a desire to explore the means by which this might be achieved. Repudiation requires more than this. It requires conduct that evinces an intention no longer to be bound by the Contract, or an inability or unwillingness to perform the Contract.[17] It is a serious matter that will not be inferred lightly.[18] While it would seem that R&D was in a difficult position, and unlikely to be able to satisfactorily perform its obligations under the Contract, its conduct, through Mr Brokenshow, did not rise as high as a repudiation of its contractual obligations.
[17] Shevill v Builders Licensing Board (1982) 149 CLR 620; Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623.
[18] Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17.
In the course of submissions before this Court, Westside shifted ground to a contention that it, rather than R&D, repudiated the Contract. Westside contended that if it was wrong in its primary contention that it had validly terminated the Contract under clause 15, which I address below, then it would follow that it wrongfully purported to terminate under that clause, and as such committed a repudiatory breach of the Contract. Westside further contended that R&D accepted the repudiation by leaving the Site and ceasing to perform its contractual obligations.
There are two difficulties with this submission, each of which is independently fatal to its acceptance. The first is that it was not a matter advanced by Westside in its payment schedule (or, indeed, in submissions before the Adjudicator), and so was not a matter the Adjudicator was entitled to take into account.
The second is that I do not consider that Westside did repudiate its contractual obligations. I do not think that the communications between the parties in the material before the Adjudicator reveal any purported termination by Westside under clause 15. To the contrary, for the reasons I explain below, I consider that the most natural construction of the parties’ dealings in the second half of October 2017 is that they agreed to bring the Contract to an end. While the agreement might be described as an agreement to terminate (or an agreement to remove the balance of the contractual works from R&D) in the manner contemplated by clause 15.3, that is not the same as finding that there was a purported (unilateral) termination of the Contract under clause 15. It follows that I do not accept that there was a wrongful termination under that clause that would constitute a repudiatory breach by Westside.

Turning to address Westside’s primary contention, I do not accept that the Contract was terminated, or that the contract works were removed or taken out of R&D’s hands, pursuant to a (unilateral) exercise by Westside of its rights under clause 15 of the Contract. Westside accepts that an exercise of its rights under clause 15 required that notice be provided under clause 15.1. It contends that Mr Hollit’s email of 17 October 2017 (the terms of which are set out earlier in these reasons) was sufficient notice for this purpose. Westside relies in particular on the following passage from that email:
Contractually you have not been doing the required hours to maintain program, and referencing clause 5.3 of our subcontract we have a right to instruct to accelerate at your cost, as well as employ additional labour at your cost.
Westside contends that this passage complains of a failure to proceed in accordance with the contract program, which is a category of breach identified in clause 15.2(i), and that the email thus provided “notice specifying [a] breach” in accordance with clause 15.1, and that this was all that was required in order to trigger its right to terminate the Contract, or remove works from R&D, under clause 15.3.
It is true that clause 15.1 does not expressly require that the notice do more than specify the breach. It is also true that if it were intended that more be required (for example, notice that specified not only the breach but also the intention to invoke the clause 15.3 right to terminate), then this could easily have been provided for in the Contract. I also accept that contractual terms that are more prescriptive as to the required content and form of notice may well be commonplace in construction contracts, such that the absence of any express reference to a notice requirement of this type in the present contract is a matter of some significance.
However, in my view, bearing in mind the potentially serious consequences of notice under clause 15.1 – that is, termination or removal of the contract works – that clause should be construed as requiring that notice be provided not merely of a breach, but also of a breach that might be relied upon under clause 15. I do not suggest that any particular form of notice would be required. But the writing that is said to constitute notice of a breach for the purposes clause 15.1 must make it plain that that is what it is. It must not only specify that there has been a breach, and identify that breach, it must also state that it is intended to be by way of notice under clause 15.1, and hence be sufficient to alert R&D to the potential or risk that Westside might exercise its rights under clause 15 to terminate or remove works from R&D if it does not promptly remedy the breach. Given the ease and prevalence of allegations of breach of contract in a building or construction setting, it seems to me that the Contract would operate in a uncommercial manner were the notice requirement not construed in this way. It would tend to neuter the clause 15.3 opportunity to rectify the breach, and generally leave R&D in a very vulnerable position. I do not think the parties could be taken to have objectively intended an arrangement of the type contemplated by Westside’s construction of clause 15.1.
Here, the email of 17 October 2017 not only did not expressly state that the departure from the contract program was a breach, but also did not state that the email was notice under clause 15.1, and did not otherwise provide any notice of the possibility of the asserted breach being relied upon by Westside in support of an exercise of its rights under clause 15. To the contrary, the reference to the departure from the construction program was expressly made in the context of a threat by Westside to rely upon this in order to direct acceleration of the works under clause 5.3.
It is for these reasons that I do not accept that the 17 October 2017 email provided the notice required by clause 15.1 of the Contract. It follows that Westside was not entitled to, and did not, unilaterally terminate the Contract or remove the balance of the contract works from R&D under clause 15.
The above analysis leaves only two further alternatives. The first, being the alternative accepted by the Adjudicator, is that the Contract remained on foot, with the parties’ rights – and, importantly for present purposes, reference dates under clause 9.1 – continuing to accrue into December 2017. The second is that the parties agreed to bring the Contract to an end, or, as Westside described it, the parties mutually cancelled or abandoned the Contract. In my view, while the material before the Adjudicator was not sufficiently detailed to be precise or exhaustive about the terms agreed by the parties, it was sufficient to conclude that the parties did agree the Contract would come to an end; that is, that the Contract was to be terminated by agreement.
While the (unilateral) exercise of a contractual right to terminate requires strict compliance with any contractual preconditions to the exercise of that right (including, as here, any notice requirement), no such requirements attend a mutual agreement between the parties to terminate the Contract. It is simply a matter of whether it may be inferred, from an objective assessment of their communications and conduct, that they did not intend the Contract to be further performed.
The communications before the Adjudicator commenced with Mr Brokenshow’s email of 15 October 2017, in which he asked to meet to discuss “to allow me to be released from this project in some form”. On 17 October 2017, Mr Brokenshow sent a second copy of his email from the previous day. The covering email referred to him having added “the request to possibly cancel our contract subject to your acceptance and guidelines”. The addition to the email made reference to the possibility of “closing” the Contract from 31 October 2017, with the R&D personnel being employed by Westside as casuals. It also acknowledged that Westside might need to adjust R&D’s October 2017 claim to reflect Westside’s continuing exposure to cost overrun.
When Mr Hollit responded by email of 17 October 2017, he rejected the suggestion that Westside might employ R&D personnel on a casual basis. But he mentioned an intention to get another subcontractor “to complete the works given R&D’s request to cease its contractual obligations”. Then, in his 19 October 2017 email, Mr Hollit made reference to R&D’s desire to terminate, and Westside’s progress in obtaining a quote from another subcontractor to complete the contract works. And finally, in his email of 26 October 2017, which Mr Hollit says was confirmatory of his discussions with Mr Brokenshow earlier in the day, Mr Hollit confirmed Westside’s intention to engage other subcontractors “as per our rights under clause 15” of the Contract to complete the works, and to recover the projected cost to complete from any amount otherwise payable to R&D.
It seems to me that by leaving the Site in the context of, and against the background of, communications to the above effect, R&D (through Mr Brokenshow) agreed not only to bring the Contract to an end, but to do so on the terms specified by Westside; that is, on the basis that it was to be treated as a termination (or removal of works) under clause 15.3, entitling Westside to recover the costs of completion by way of set off in the manner contemplated by clause 15.6(ii).
It might be said that the agreement was one to permit the removal of works under clause 15.3, rather than termination under that clause. But in circumstances such as the present, where the work removed was the entirety of the balance of the works to be performed under the Contract, it is my view that this is in substance no different from an agreement to terminate the Contract.
It is true that the parties then fell into dispute, with R&D, through Mr Brokenshow’s email of 3 November 2017, disputing Westside’s assertions as to both the cause of the delays that had occurred and the cost to complete. But I do not regard disputation as to these matters as inconsistent with the parties being agreed that the Contract was terminated under clause 15.3.
I turn now to consider the parties’ competing submissions as to the existence of a reference date for the purposes of the SOP Act. I do so first on the basis that, as I have found, the parties’ Contract had come to end by late October 2017. I will then address the issue on the assumption that I am wrong about this, and that the Contract remained on foot. As will become apparent, I am satisfied that under either scenario the Adjudicator’s Determination was infected by jurisdictional error.
Existence of reference date assuming the Contract had come to an end
As explained earlier, the entitlement to serve a payment claim under s 13(1) of the SOP Act is conferred upon a person who is entitled (or claims to be entitled) to a progress claim pursuant to s 8. Under s 8, a person who has undertaken to carry out construction work (or to supply related goods or services) is entitled to a progress payment “on and from each reference date” under a construction contract.
I have earlier set out the definition of “reference date” in s 4 of the SOP Act, but in short it is the date (a) on which, in accordance with the Contract, a claim for a progress payment may be made; or (b) if there is no express provision for progress payments in the Contract, then the last day of each month from when the work is first carried out. In the case of both a ‘limb (a)’ reference date and a ‘limb (b)’ reference date, the reference date assumes the existence of, and is determined by reference to, an underlying right to make a progress claim. The former may be described as a contractually determined, or contractually generated, reference date; it being a date dependent upon, and determined by reference to, a contractual right to make a progress claim. The latter may be described as a statutorily generated reference date; it being a date dependent upon, and determined by reference to, a statutorily conferred right to make a progress claim.
It follows from the above that a valid payment claim both assumes the existence of a reference date, and also may only be served “on and from” that reference date. Put another way, the existence of a reference date is a precondition to the making of a valid payment claim under the SOP Act, and marks the commencement of the period of time within which it may be served.[19]
[19] Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 91 ALJR 233; [2016] HCA 52 at [61]-[62].
In the circumstances of this case, the reference date must be one determined in accordance with the terms of the Contract; that is, a contractually generated reference date. While limb (b) of the definition of a reference date allows for the possibility of statutorily generated reference dates, that cannot avail a claimant in circumstances where (as here) the Contract provides for the making of progress claims. In this situation, the entitlement to serve a payment claim is only conferred upon a person on and from the contractually generated reference date. That is so even in circumstances where the Contract has been terminated or has otherwise come to an end.[20]
[20] Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 91 ALJR 233; [2016] HCA 52 at [73]; Primelime (NSW) Pty Ltd v BAEC Contracting Pty Ltd [2018] NSWSC 372 at [29].
R&D has sought to rely upon various reference dates to support its payment claim and the Adjudicator’s Determination. I will first address the possibility of a 23 December 2017 reference date (being the one relied upon by the Adjudicator in his Determination) before then addressing the possibility of a 23 October 2017 or 23 November 2017 reference date.
No contractually generated reference date of 23 December 2017
Assuming the correctness of my conclusion that the Contract between Westside and R&D was no longer on foot from late October 2017, R&D cannot in this circumstance rely upon a reference date of 23 December 2017.
While s 13(4) of the SOP Act permits payment claims to be served up to six months after the construction work has been carried out, the payment claim must still be in respect of a contractually generated reference date. Section 13(4) does not create a right to make a progress claim; it merely marks the end of the period within which a payment claim based upon that right may be served.
When the parties’ Contract came to an end in late October 2017, they retained any rights they had already accrued under the Contract, but they did not thereafter accrue any further rights. There is nothing in the Contract to suggest that rights to make progress claims continued to accrue after the Contract came to an end. To the contrary, the existence of a right on the part of Westside to recover from R&D the amount by which the cost to complete exceeds any unpaid balance, tends to suggest the contrary. And if R&D did not accrue any further entitlement to make contractual progress claims after the end of October 2017, then no contractually generated reference dates arose after that date. Put another way, if (as I have found) the Contract came to an end in late October 2017, then R&D was not entitled to rely upon any reference date that would have accrued had the Contract remained on foot.[21] It follows that 23 December 2017 was not a reference date that arose under the Contract; it was not a reference date capable of sustaining a valid payment claim by R&D.
[21] Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 91 ALJR 233; [2016] HCA 52 at [79]; Primelime (NSW) Pty Ltd v BAEC Contracting Pty Ltd [2018] NSWSC 372 at [30].
The issue then becomes whether there is some earlier available reference date based upon rights already accrued at the time the Contract came to an end, and if so, whether R&D may now rely upon any such reference date to sustain the Adjudicator’s Determination. R&D contended that it had accrued contractual rights to make progress claims on both 23 October 2017 and 23 November 2017, with the result that these were reference dates that were available under the Contract, and able to be relied upon to sustain its payment claim and the Adjudicator’s Determination.
Reference date of 23 October 2017 not able to sustain the Determination
There is no doubt that 23 October 2017 is a reference date that arose under the Contract. Indeed, as mentioned earlier, R&D made four progress claims that were made, or deemed to have been made, on that reference date. Two were dated 24 September 2017 (and by operation of clause 9.2 deemed to have been made on 23 October 2017), and the other two were dated (and made on) 23 October 2017.
It follows that on and from 23 October 2017, R&D could have served a payment claim under the SOP Act, with a reference date of 23 October 2017, in respect of the amount of those four progress claims made under the Contract. I reject the submission by Westside that 23 October 2017 would not have been an available reference date by reason of the contractual progress claims that had been made, and the operation of the proscription against multiple payment claims with the same reference date in s 13(5) of the SOP Act.
To understand my reasons for rejecting Westside’s submission based on s 13(5), it is important to bear in mind that while the one document may function as both a (contractual) progress claim and a (statutory) payment claim, the progress claim and payment claim are conceptually distinct things. While the right to make a statutory payment claim depends upon the existence of a right to make a contractual progress claim,[22] and the statutory payment claim may be in respect of the same amount and have the same reference date as the contractual progress claim, a proper understanding of the scheme under the SOP Act requires that the conceptual distinction between progress claims and payment claims be kept firmly in mind.
[22] I am confining my observations to the scenario of contractually generated reference dates under ‘limb (a)’ of the definition of reference date.
The conceptual distinction is important, for example, in understanding the operation of s 13(5) of the SOP Act. That section prevents a claimant serving “more than 1 payment claim in respect of each reference date under the construction contract”. This obviously prevents a claimant who has served a statutory payment claim in respect of a given reference date issuing a second statutory payment claim in respect of that same reference date. However, in my view, the mere service of a contractual progress claim in respect of a given reference date does not prevent a statutory payment claim being served in respect of that reference date. I do not consider that s 13(5) is addressed to that situation. It follows that R&D’s submission of contractual progress claims with a reference date of 23 October 2017 would not have prevented it subsequently serving a statutory payment claim in respect of that same reference date.
Next, I do not consider that the timing of the service of the payment claim in this case would have prevented it being in respect of a 23 October 2017 reference date. The contractual progress claims were required to be submitted by 23 October 2017 in order to attract that reference date; otherwise, by operation of clause 9.1, the following reference date (23 November 2017) would apply. But the same temporal restriction did not apply in relation to a statutory payment claim. The right to serve a statutory payment claim existed “on and from the reference date” (s 8(1)). The only other temporal restriction upon this was in s 13(4), which provided that a statutory payment claim may only be served in the later of either (a) the period determined by the Contract, or (b) the period of six months after the construction work to which the claim relates was last carried out. It seems to me that by reason of s 13(4)(b), R&D would have been entitled to serve a payment claim in respect of the reference date of 23 October 2017 up to six months after ceasing to carry out work under the Contract. Here, the statutory payment claim was served on 8 December 2017, and so within the period required by s 13(4).
I note that the amount claimed in the payment claim served on 8 December 2017 differed from the total figure claimed across the four contractual progress claims with a 23 October 2017 reference date. The reason for this was that the contractual progress claims included amounts through to the end of October 2017, whereas the payment claim gave credit for the final few days of October 2017 after R&D had left the site. It was not suggested that this difference in the amounts would have prevented R&D serving a payment claim with a reference date of 23 October 2017 in respect of the amount claimed in R&D’s payment claim. An exercise of the contractual right to make a progress claim for a particular figure does not in my view prevent the statutory right to make a payment claim being exercised in respect of the same reference date but for a lesser amount.
For these reasons, I accept that in December 2017 R&D could have served a statutory payment claim with a reference date of 23 October 2017.
However, despite this conclusion, the difficulty for R&D is that it sought and obtained an Adjudicator’s Determination in respect of a statutory payment claim with a reference date of 23 December 2017. As I shall explain, I do not consider that it can now seek to sustain the validity of that Determination by reference to some other reference date, such as 23 October 2017.
It is true that R&D’s statutory payment claim did not nominate or identify any particular reference date. In that sense, R&D did not confine itself at that point in time to reliance upon any particular reference date.

It is also true that the ‘failure’ to identify any particular reference date in the payment claim did not invalidate that payment claim.[23] While the existence of an available reference date is a precondition to a valid payment claim, the identification of the reference date in the payment claim is not.
[23] Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 91 ALJR 233; [2016] HCA 52 at [27].
However, it does not follow from this that the ability to later identify some available reference date will always be sufficient to sustain the validity of the payment claim, or an adjudicator’s determination in respect of that payment claim. To so hold would, in my view, be to ignore the significance of the reference date under the SOP Act, including its relationship with the right to make a progress claim that underpins both the reference date and the entitlement under the SOP Act to serve a payment claim.
Under the SOP Act, the reference date is not merely a temporal precondition to the entitlement to serve a statutory payment claim. The identification of the reference date is also critical, for example, to the operation of the proscription against multiple statutory payment claims in respect of the one reference date under s 13(5).
Further, and more importantly in the present case, the identification of the reference date is also related to, and indeed a function of, the identification of the right to make a progress claim which underpins the entitlement to serve a payment claim. Bearing in mind that I am only concerned in this case with contractually generated reference dates, the reference date, by reason of its definition, is merely a convenient label for the (contractually determined) date on which a contractual progress claim may be made. Understood in this light, the jurisdictional requirement that there be in existence a reference date is effectively a jurisdictional requirement that there be in existence a right to make a progress claim. In this case, it must be a contractual right to make a progress claim; in other cases it may be a statutory right to make a progress claim.
Bearing in mind this relationship between the reference date and the contractual right to make a progress claim that underpins it, it can be seen that identification of the reference date is also determinative of (or at least linked to) the date on which the statutory payment claim is payable. For example, under ss 14(4), 15(1)(b) and 15(1)(d) of the SOP Act,[24] the amount payable under a payment claim must be paid on or before the due date for the progress payment to which the payment claim relates.
[24] These sections must be read together with s 11, which provides that progress claims are due and payable on the date provided for in the contract, or in the absence of any date in the contract, 15 days after the payment claim is made.
Here, if the payment claim was based on R&D’s entitlement to the contractual progress claims made, or deemed to be made, on 23 October 2017 (with the result that the reference date was 23 October 2017), then payment of any amount required to be paid in respect of that payment claim would be due and payable (under clause 9.5) within 45 days from the end of October 2017. Conversely, if the reference date was 23 December 2017, then payment of any amount owing would not fall due until 45 days from the end of December 2017.
In the context of a payment claim that proceeds to adjudication, s 22(1)(b) requires the adjudicator to determine the date on which the adjudicated amount became or becomes payable. The precise terms of the determination will thus depend upon the particular reference date (and right to make a progress claim) under consideration.
In short, the reference date is determined by reference to the right to make a progress claim that underpins it; and having been determined in this way, the reference date is not then set free from the right that underpins it. To the contrary, the underlying right to make a progress claim continues to inform the operation of the statutory regime for the making, and enforcement (including through the adjudication process), of a payment claim in respect of a particular reference date.
Here, as I have mentioned, the payment claim did not identify a reference date. However, after this was pointed out in Westside’s payment schedule, R&D chose to nominate a reference date of 23 December 2017 in its adjudication application. Submissions proceeded on that basis, with the parties essentially confining themselves to the competing contentions that 23 December 2017 either was, or was not, an available reference date. R&D did not contend that there was some earlier reference date capable of sustaining the validity of R&D’s payment claim. R&D confined itself to a submission that the Contract remained on foot, and that it was thus entitled to rely upon a contractual right to make a progress payment that accrued in December 2017 and a reference date of 23 December 2017. Not surprisingly given this context, the Adjudicator confined himself to consideration of whether or not 23 December 2017 was an available reference date, and for reasons earlier summarised, concluded that it was. The Adjudicator thereafter reasoned that the due date for the amount payable was the contractually determined period of 45 days after the end of the month in which the relevant progress claim was made. The amount of the Determination was thus held to be due on 14 February 2018.
In my view, by upholding the validity of the payment claim on the basis it was in respect of a 23 December 2017 reference date, in circumstances where a 23 October 2017 reference date was available but a 23 December 2017 reference date was not, the Adjudicator fell into jurisdictional error. The reason for this is that I consider that the validity of a payment claim, and consequential adjudicator’s determination, must be considered in respect of a particular reference date, and the particular right to make a progress claim that underpins it. The particular date need not be identified or nominated in the payment claim (although for obvious reasons this will be preferable), but it must be ascertained at some point in the process.
By way of explanation, I consider that not only must a payment claim under the SOP Act be supported by an available reference date, but also any adjudicator’s determination in respect of that payment claim must be in respect of the same reference date. In other words, while the existence of a payment claim in respect of an available reference date is sufficient to trigger the adjudicator’s statutory authority or jurisdiction to adjudicate and determine a payment claim under the SOP Act, it is not an authority or jurisdiction at large. It is confined to an authority or jurisdiction in respect of that reference date (and the right to make a progress claim that underpins it). A payment claim in respect of a particular reference date only provides authority or jurisdiction for an adjudicator’s determination in respect of a payment claim with that reference date. Conversely, and relevantly here, an adjudicator’s determination in respect of a payment claim with a particular reference date can only be sustained by a payment claim with that reference date; it cannot be sustained by reference to a payment claim with a different reference date.
In my view, regardless of whether one describes the error as an error by the Adjudicator in treating the payment claim as a valid payment claim in respect of the reference date of 23 December 2017, or an error in making a determination by reference to an unavailable reference date of 23 December 2017, the error is a jurisdictional one.
The practical effect of this is that my conclusion that R&D’s payment claim could have been in respect of a reference date of 23 October 2017 is of no avail to R&D in circumstances where it sought and obtained the Determination based upon a reference date of 23 December 2017.
Reference date of 23 November 2017 not able to sustain the Determination
I should also address R&D’s contention that it was entitled to rely upon a 23 November 2017 reference. The starting point for this submission is a contention that as at the date in late October 2017 when the Contract came to an end – say, 26 October 2017 – R&D had an accrued right to make a further contractual progress claim. A contractual progress claim might have been made, for example, on 25 or 26 October 2017, shortly before the Contract came to an end. If such a claim were made, then under clause 9.2 it would be deemed to have been made on 23 November 2017. The contention is thus that 23 November 2017 is a reference date that is available and capable of sustaining the validity of the 8 December 2017 payment claim.
However, even assuming 23 November 2017 might have been available as a reference date capable of supporting the payment claim served by R&D on 8 December 2017, the same reasoning that I have concluded is applicable in respect of R&D’s attempt to rely upon a 23 October 2017 reference date would apply in respect of reliance upon a 23 November 2017 reference date. As the Adjudicator’s Determination was based upon, and expressed in terms of, a payment claim (and underlying contractual right to make a progress claim) with a reference date of 23 December 2017, I do not consider that it is capable of being sustained by the reference to a payment claim with a reference date of 23 November 2017.
Existence of reference date assuming the Contract remained on foot
Even if I am wrong in my conclusion about the status of the Contract, and it did remain on foot as at the end of October 2017, there would remain a difficulty with R&D’s reliance upon a reference date of 23 December 2017. The difficulty would arise from the fact that the payment claim in this case was served on 8 December 2017.
Under the approach taken by the New South Wales Court of Appeal in All Seasons Air Pty Ltd v Regal Consulting Services[25] to the combined operation of ss 8 and 13(1) of the SOP Act, and the definition of reference date,[26] it would seem impermissible to serve a valid payment claim prior to the reference date of 23 December 2017. The Court in that case, in the joint reasons of Leeming and Payne JJA, held that a payment claim served prior to the contractually generated reference date was premature and invalid, even though the Contract in that case expressly provided that a progress claim under the Contract, if made prior to the reference date, was deemed to have been made on that date.
[25] All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289.
[26] Under the equivalent NSW legislation the two limbs of the definition are included within s 8, whereas in the SA legislation they are contained in the definition of reference date included within s 4 of the SOP Act.
The Court accepted that, as between the parties to the Contract, they had agreed that a progress claim under the Contract could be made early and would then be deemed to have been made on the reference date. However, a distinction was drawn between this contractual operation of the deeming provision so as to affect the parties’ rights inter se in relation to the making of a progress payment under the Contract, and its potential operation in relation to the right to serve a payment claim under the New South Wales equivalent of the SOP Act. By reason of the introductory words in s 8, the latter only arose “on and from” the reference date. A payment claim under the SOP Act could thus not be served prior to the contractually generated reference date, regardless of the operation of any deeming provision in the contract in relation to the date for the making of a contractual progress claim (as opposed to a statutory payment claim).
The Court considered that the alternative construction (which would allow a payment claim to be served prior to the reference date) would not promote the purpose of the SOP Act. The significant consequences for both parties of invoking the statutory regime, and the time-critical nature of that regime, meant that there were sound reasons for there to be certainty as to precisely when a payment claim has been served. The need to have regard to contractual provisions in order to determine when service of the payment claim occurred would be potentially productive of confusion in the operation of the statutory regime.
Applying that reasoning here, it would seem that a payment claim with a reference date of 23 December 2017 could only be served “on and from” that date; and that the service of a payment claim with that reference date on 8 December 2017 would have been premature and invalid.
That said, there are two potential qualifications to the application of this reasoning in the present case. The first arises from the slightly differing terms of the Contract in this case. In All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd, the Contract provided that progress claims were to be made “on” the 20^th day of the month; and subsequently also provided for the deeming of early progress claims to have been made on the date for making that claim. In this case, the Contract provided for progress claims to be submitted, not “on” a fixed date, but rather “by” the day of the month specified in item 8 of the Contract particulars (namely, the 23^rd day of the month) (clause 9.1); and in a subsequent clause provided for the deeming of claims received prior to the date specified in item 8 to have been received on that day (clause 9.2). In light of this different drafting, it might be argued that the Contract in this case did not provide for a fixed reference date of the 23^rd day of each month, but rather, by allowing for claims to be made “by” this date, and hence in advance of this date, it contemplated a flexible reference date which would be determined in the context of any particular month by the date of submission of the progress claim. Under this analysis the reference date in this case might be 8 December 2017.
However, in my view, the difference in drafting is not a distinction of any substance. When clauses 9.1 and 9.2 are read together, it is plain that the Contract in this case is no different to the contract in All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd. It is intended to provide a fixed date for progress claims to be made (the 23^rd of each month) but simply permits the flexibility of earlier submission, but with any earlier submitted claim deemed to have been made on the 23^rd. The net effect is that the contractually generated or determined reference date remains a fixed date, the 23^rd of each month, and the SOP Act only permits service of a valid payment claim in respect of this reference date “on and from” that date.
The second potential qualification to an application of the reasoning of Leeming and Payne JJA in All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd arises from the reasons of White JA in that case. While his Honour expressly agreed with the joint reasons of Leeming and Payne JJA, his Honour then qualified this with an observation that it had not been argued in that case that the words “on and from” at the commencement of s 8 of the SOP Act might be read as meaning “on and with effect from” rather than “on and after”. His Honour said that he had some sympathy for the former, and did not regard it as inconsistent with the reasons of the High Court in Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd.[27]
[27] All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289 at [50]-[51].
Like White JA, I also have some sympathy for this construction of the introductory words of s 8 of the SOP Act. It would bring some symmetry to the commencement of the time for making statutory payment claims and contractual progress claims. On the other hand, as I have mentioned earlier in these reasons, the SOP Act maintains a conceptual distinction between a payment claim and the right to a contractual progress claim that underpins it. In circumstances where, for example, the SOP Act expressly provides in s 13(4) for payment claims to be made well after the relevant contractual progress claim might have been made, there does not seem to be any reason to think that symmetry would have been intended in relation to the commencement of the period for the service of claims. To the contrary, as Leeming and Payne JJA mentioned, there are sound reasons for thinking that certainty might be desired and intended in relation to the statutory regime despite the contract taking a more flexible approach. Like their Honours, I would not lightly conclude that the time-critical regime established by the Act was engaged by the deemed or notional service of a document, rather than the actual service of that document.
In all of the circumstances, I am not satisfied that it would be appropriate to depart from the construction of the words “on and from” in s 8 of the New South Wales equivalent of the SOP Act adopted by Leeming and Payne JJA. It follows that even if, contrary to my earlier conclusion, the Contract remained on foot in December 2017, the payment claim served on 8 December 2017 would not have been a valid payment claim in respect of a 23 December 2017 reference date. As at 8 December 2017, R&D was not entitled to serve a payment claim with a reference date of 23 December 2017. It would only have been entitled to do so “on and from” 23 December 2017, and not prior to that date.
Other grounds for judicial review
In circumstances where I have found jurisdictional error arising from the Adjudicator’s reliance upon a reference date of 23 December 2017, it is not necessary for me to consider the merits of Westside’s other contended jurisdictional errors. While I am inclined to the view that those other contentions of error do not have merit, the issues raised by these contended errors did not receive significant attention in the parties’ submissions. In the circumstances I prefer not to express a concluded view in relation to these issues.
Disposition of the application for judicial review
For the reasons set out, the Adjudicator’s Determination of 2 February 2018 was infected by jurisdictional error.
I observe that even in circumstances where jurisdictional error has been established, the Court may, in its discretion, withhold relief. It might consider doing so here, for example, on the basis that the Determination could have been sustained (save as to the date on which payment was due and payable) on the basis of a different reference date. However, I do not consider that the circumstances of this case warrant me withholding relief. It might be said that the error in this case was, on one view, relatively technical. But it must be remembered that the error was in the context of a statutory regime that is designed to ensure the rapid flow of money in relation to construction contracts, and to that end places the party in Westside’s position under significant time pressure in responding to claims made. In that context, I see no difficulty in demanding that the party in R&D’s position be accurate and consistent in its utilisation of the statutory scheme, including in its identification of the reference date upon which it relies.
I consider it appropriate that I allow the application for judicial review, and make an order in the nature of certiorari quashing that Determination. I will hear the parties as to the precise terms of relief and in relation to costs.