In the very recent decision of Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113, the NSW Court of Appeal held that:
1. Practical completion only occurs when a superintendent certifies that it has occurred.
2. The parties can limit the ability for reference dates to occur, and BCIPA claims to be made, after practical completion and before final completion.
3. That certification cannot have retrospective effect.
4. The parties can limit the ability for reference dates to occur, and BCIPA claims to be made, after practical completion and before final completion.
5. Practical completion cannot occur without the builder’s knowledge. Were that not so, the builder could be retrospectively deprived of the right to make a payment claim. Further, both parties must know the date of practical completion for a number of reasons, including the right to lodge a claim under BCIPA and insurance.
6. The following propositions may be derived from the facts of this case as to the date of practical completion:
(a) achievement of practical completion depends upon the satisfaction of the superintendent as to the elements of the defined term;
(b) That state of satisfaction is effective when communicated by the issue of the certificate of practical completion;
(c) “Issue” includes provision of the certificate to the contractor; and
(d) The date of practical completion as evidenced by the certificate, is the date of the certificate.
7. The parties, can determine the ability to lodge progress claims as between practical completion and final completion, by limiting the number of reference dates. In this case, the reference dates were limited to the first date for making a progress claim after practical completion and then at final completion.