Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52

HIGH COURT OF AUSTRALIA

KIEFEL, BELL, GAGELER, KEANE AND GORDON JJ

SOUTHERN HAN BREAKFAST POINT PTY LTD (IN LIQUIDATION) APPELLANT

AND

LEWENCE CONSTRUCTION PTY LTD & ORS RESPONDENTS

Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52 21 December 2016 S199/2016

ORDER

1. Appeal allowed.

2. Set aside the orders made by the Court of Appeal of the Supreme Court of New South Wales on 25 September 2015 and in their place order that the appeal to that Court be dismissed.

3. The first respondent pay the appellant's costs of the appeal to this Court and of the appeal to the Court of Appeal.

4. The first respondent repay to the appellant the sum of $1,276,000 paid to the first respondent on 7 October 2015 together with interest since that date.

On appeal from the Supreme Court of New South Wales

Representation

M Christie SC with D P Hume for the appellant (instructed by CCS Legal Pty Ltd)

S Robertson with P F Santucci for the first respondent (instructed by Maddocks Lawyers)

Submitting appearance for the second and third respondents

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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

Statutory Construction – Building and Construction Industry Security of Payment Act 1999 (NSW), s 13(1) – Whether existence of reference date under construction contract precondition to making of valid payment claim.

Contract – Construction of terms – Where construction contract made provision for contractor to "claim payment progressively" by making a "progress claim" – Whether it was the parties' intention that the contractor's right to make a progress claim under construction contract was to survive termination.