In this case, the Supreme Court of New South Wales reinforced the importance of following the proper methods of service of progress claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA).
In the abovenamed case, A&H Floors 2 Doors Australia Pty Ltd (A&H Floors) were performing flooring works for a building being developed by Equa Building Services Pty Ltd (Equa).
On or about 30 June 2021, A&H Floors sent an email enclosing a payment claim to an email address ending with “@ardengroup.com.au”. However, the specific email address was not one which was used by an authorised representative of Equa.
Equa did not respond to the payment claim.
On or about 30 August 2021, A&H Floors made an adjudication application and the Adjudicator found that the payment claim had been validly served by email as the domain “@ardengroup.com.au” was used by all people representing Equa.
Equa filed a summons in the Supreme Court of New South Wales seeking orders that the determination be set aside on the basis that the payment claim had not been validly served.
The Court set aside the determination finding that section 31(1)(d) of SOPA requires that an email be sent “to an email address specified by the person for the service of documents of that kind”. The email was not served in accordance with any of the methods of service under SOPA or otherwise permitted under the construction contract, and the particular addressee of the payment claim had never been employed by Equa or any related entities.
This case is an important reminder to claimants to put processes in place to ensure that payment claims are served in a manner permitted by SOPA.
*This article was prepared with the assistance of Priyanka Ram*
If you have any questions or concerns please contact Michael Terry-Whitall of our Building & Construction Team on 02 6188 3600