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High Court Appeal on Security of Payments Legislation

Caseflash 08 August 2016

The High Court will hear an appeal relating to the security of payments legislation for the first time in October, after special leave was recently granted in Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd & Ors [2016] HCATrans 173 (28 July 2016).

The application was for special leave to appeal on the following points:

  1. Whether the existence of a reference date is a jurisdictional fact (which is reviewable by the court); and
  2. Whether certiorari (a court order setting aside the adjudicator’s decision) is available for non-jurisdictional error on the face of the record.

The appeal will be of great interest to members of the building and construction industry throughout Australia as the issues which are to be decided in relation to the NSW legislation will have important implications for the corresponding security of payments legislation which exists in other states.

No doubt the appeal will be followed closely. We will provide a further update once a decision is handed down by the High Court.


Tony Mylne, Partner

Jasmine Blight, Associate

Caseflash 08 August 2016
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