Case Note: Claire Rewais and Osama Rewais t/as McVitty Grove v BPB Earthmoving Pty Ltd [2025] NSWCA 103
Key Takeaways
- A person may specify an email address for service of a class of documents under the Building and Construction Industry Security of Payment Act (SOP Act) by words or conduct expressly or impliedly indicating the person’s consent to the use of the email address for service of that class of document. This may be by way of the use of that email address in communications involving invoices expressed to be payment claims under the SOP Act;
- Section 31(1)(d) of the SOP Act permits a person to specify an email address for service of all documents authorised or required to be served, or for service of particular documents authorised or required to be served. The question in a given case will be whether a document has been served by email to an email address specified for service of a document of that kind; and
- Section 13A of the Electronic Transactions Act applies with the effect that the email need not have been opened or read by the addressee to have been served.
Relevant Facts
In 2020, the appellants (The Owners) became the registered proprietors of a property in Woodlands, NSW consisting of a residential dwelling, a café, and a disused vineyard and a grove of olive trees.
In 2023, they obtained development approval to construct consulting rooms on the property. Around 6 March 2023 The Owners met with the respondent (the Builder),and entered into an oral agreement pursuant to which the Builder would carry out earthworks at the property.
The Builder commenced works on 9 May 2023, and over time, the scope of work expanded, altering the costs of the project. The Owners and the Builder agreed to further works, and most notably abandoned the plan to construct a doctor’s surgery to instead renovate the area and open it as a function centre.
The Owners received an email from the Builder on 24 April 2024, containing amended invoices that amounted to $277,007.16. This required the Owners to pay the outstanding balance within 15 business days. However, the Owners did not provide a payment schedule in response to the Builder’s payment claim until 18 June 2024, on the basis that the payment claim was not served until it was brought to the Owners attention on 11 June 2024.
On 22 May 2024, the Builder’s solicitors sent a letter to the Owners, giving notice of the Builder’s intention to apply for adjudication of the payment claim as per section 17(2) of the Building and Construction Industry Security of Payment Act (SOP Act), and eventually lodging the adjudication application on 13 June 2024.
It was not until 18 June 2024 that the Owners provided the payment schedule, however, the payment schedule submitted that they did not owe the Builder anything, that the adjudication was invalid, and that the adjudicator did not have the jurisdiction to determine the application.
Issues
The key issues in contention were the date of service of the payment claim and section 17 notice.
The Primary Judgment
The Owners claimed that because they were not aware of the payment claims until 11 June 2024 and therefore the section 17 notice and the adjudication process was commenced prematurely and, as a result, the adjudicator did not have jurisdiction to make the determination under s 22 of SOP Act.
The Court held that the Builder had not proved that the payment claim was served in accordance with s 31(1)(d) of SOPA which provides:
“(1) Any document that by or under this Act is authorised or required to be served on a person may be served on the person:
…
(d) by email to an email address specified by the person for the service of documents of that kind”
The Court accepted that the Owners provided his email address to BPB only for the purpose of receiving the quote, and therefore did not amount to “the service of documents of that kind”.
BPB submitted that the Owners were aware of the payment claims and notice when they were sent as per sections 8 and 13A pf the Electronic Transactions Act. The court held that neither of these sections affect the requirements for service of a payment claim under s 31 of SOPA and do not bear the question of whether the the Owners were made aware of the payment claim.
The Court of Appeal’s Decision
In response to the Owners submission that the email was only provided for the purpose of receiving the quote and no other “specific” purpose, the Court of Appeal held that pursuant to s 31(1)(d) of the SOP Act, what must be specified is an email address. The documents to which the section refers to, refers to any document that by or under SOP Act is authorised or required to be served on a person, including payment claims and notices of adjudication applications. The Court of Appeal found that a person can specify an email address for service of a class of documents by words or conduct expressly or impliedly indicating the person’s consent to the use of the email address for service of that class of document. The Court of Appeal held that the Owners had impliedly specified the email address for documents including the payment claim and the section 17 notice through their use of that email address in communications involving the invoices expressed to be payment claims under the SOP Act. The Court of Appeal held that the service of the payment claim, and section 17 notice were effective irrespective of whether the Owners had actual notice or awareness of the emails, ultimately providing that the adjudicator’s determination was not invalid.