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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