Is ‘reference date’ deemed an essential jurisdictional fact for validity of Adjudications?

In Australia, the courts have been inconsistent in their approaches to define jurisdictional facts upon which the jurisdiction of adjudicator can be determined. A very recent example is the case of Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd [2015] NSWCA 288. In that case, the NSW Court of Appeal overturned the trial judge’s finding that the adjudicator’s determination of a reference date was a finding of jurisdictional fact. The Court held that: “The existence of a reference date to support a payment claim is not a jurisdictional fact; it is not an essential pre-condition for the making of a valid payment claim.” This decision not only overrules many previous authorities in the NSW (See, eg, Patrick Stevedores Operations No 2 Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014] NSWSC 1413; Omega House Pty Ltd v Khouzame [2014] NSWSC 1837), but also completely inconsistent with the current authorities in Queensland (See Lean Field Developments Pty Ltd v E & I Global Solutions (Aust) Pty Ltd [2014] QSC 293) and Victoria (See Saville v Hallmarc Constructions Pty Ltd [2015] VSCA 318 (Vickery J)).

In your opinion, which approach would you prefer in your jurisdiction? Discussion is now open at “Statutory Adjudication and Security of Payment Group“.


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