15 Importantly, no adverse comments on the work were made. Indeed, in an earlier e-mail Mr Hawkins, when he saw the plans, responded by saying "Great work, thanks."
16 On 31 October 2007 the defendant sent a further invoice to the plaintiff for the amount of $36,000 plus GST. The invoice was expressed to be for all of Phase 1 of the work ($24,000) and a progress claim for Stage 2 for "works completed to the point of Designed Environments ' termination', as advised in your e-mail of 18 February 2007". The invoice was expressed to be made under the Act. This invoice was also not paid.
17 That invoice was the relevant payment claim under the Act and, on the evidence before me, was served on 14 November 2007, not earlier as the adjudicator seems to have noted in his determination.
18 On 23 November 2007 the defendant sent the plaintiff a letter noting non- payment, no submission of a payment schedule and giving notice of an intention to apply for an adjudication under the Act.
19 It is questionable whether the time had then expired for this payment schedule. It is 10 business days -- but not even 10 days were really given. Probably the re-service of the claim the next day with a covering letter correcting some addresses would not help on this point.
20 On 4 December 2007 the plaintiff responded saying it did not wish to adjudicate the matter and would prefer to litigate it. In any event, it knew that the defendant was intent on adjudicating the matter.
21 The next matter of importance is the service of the adjudication application on the plaintiff. The process server, Frank Hoare, deposed to having left it at the registered office of the plaintiff at 7:50 p.m. on 20 December 2007. The evidence of the conversation he had with Sandra Tarrant at the time is disputed. However, what is not in dispute is that she took the documents and put them in her husband, Mr Hawkins, office. She had no discussion with him about them.
22 Mr Hawkins at mid-day on 21 December closed his office and took annual leave until 14 January 2008.
23 I accept for the purposes of determining whether this was adequate service that the documents did not come to his attention. The relevant provision for service is section 109X (1) (a) which allows service by "leaving it at… the companies registered office."
24 In Falgat Constructions Pty Limited v Equity Australia Corporation Pty Limited to[2006] NSWCA 259 Hodgson J. A. said:
"62 There remains the question of whether the time at which service or provision has taken effect is also the time at which a document is received, for the purposes of s.17(3)(b) (and see also s.17(2)(b) and s.21). I note that the word "receive" is also used in s.31(2), but used in the context of "received at that place". In my opinion, mail delivered to a registered office or place of business is received at that place when it is put into the mail box of that registered office or place of business, without the necessity of anyone actually seeing it.
63 In my opinion, the word "receive" in s.17(3)(c) does not necessarily require that the document come to the notice of a person authorised to deal with the document on behalf of the claimant. In general, in my opinion, it would be satisfied once the document has arrived at the claimant's registered office or place of business and is there during normal office hours. There may be circumstances in which service or provision has been effected within s.109X of the Corporations Act or s.31 of the Act, but the document has not been received, but I find it difficult to identify any such circumstances."
25 As indicated in Firedam Civil Engineering v KJP Construction [2007] NSWSC 1162 this resolved an outstanding first instance issue on this aspect.
26 Thus the adjudication application was served within the time limit and on 21 December 2008 given the time of service of 7:50 p.m. on 20 December 2008.
27 It is necessary for the adjudicator to serve notice of his acceptance of his application on the parties. The plaintiff accepts that the facsimile of 21 December 2007 from the Institute, and the facsimile of 2 January 2008 from the adjudicator, were at his office when he returned from annual leave on 14 January 2008. He gave evidence that these facsimiles were sent at 5:46 p.m. on Friday 21 December 2007 and at 12:46 p.m. on Wednesday 2; January 2008 respectively.
28 Thus, bearing in mind the definition of 'business days' which takes into account Saturdays, Sundays, public holidays and 27 to 31 December, he would have had until 8 January to lodge any response. He did not as he was on holidays and the adjudicator had no power, absent consent from the other party, to consider a late response (see Section 21 (2)). Absent a payment schedule the plaintiff's response could well have not been relevant (see Section 20 (2B) of the Act).
29 The course of events after the issue of the adjudication is of significance. On 8 February 2008 the plaintiff commenced proceedings in this Court seeking that "the adjudication determination be set aside." On the return day, 19 May 2008, the matter was set down for hearing on 5 September 2008 before Young CJ in Eq.
30 About the same time the defendant registered the adjudication as a judgement and notified the plaintiff after it had done so. It took no steps to enforce the judgement before the hearing fixed for 5 September 2008.
31 The plaintiff company did not appear before Young CJ in Eq on 5 September because, according to Mr Hawkins "I had inadvertently noted the date of the hearing in my diary as 15 September 2008."
32 On 5 September his Honour dismissed the proceedings and ordered the plaintiff to pay the defendant's costs.
33 Despite having threatened to do so, no application has been made by the plaintiff company to set aside the order dismissing the proceedings. Given that there was no contact by the defendant or its lawyers to see why he was not at Court, one could be forgiven for thinking that at least on the question of explanation he would have had a good case to set it aside.
34 The point which I have mentioned, namely, the premature service of the notice under section 17 (2) of the Act, goes to the substance of the claim to set it aside. Mr Hawkins made no submission on the point and the defendant merely contented itself with noting this matter rather than addressing the point. I think, given that Mr Hawkins has had no legal training, that I should address the point.
35 In Brodyn Pty Limited t/as Time Cost and Quality v Davenport and another [2004] 61 NSWLR me 421 Hodgson JA addressed the question to the extent to which natural Justice is required in these terms:
"57. The circumstance that the legislation requires notice to the respondent and an opportunity to the respondent to make submissions (ss.17(1) and (2), 20, 21(1), 22(2)(d)) confirms that natural justice is to be afforded to the extent contemplated by these provisions; and in my opinion, such is the importance generally of natural justice that one can infer a legislative intention that this is essential to validity, so that if there is a failure by the adjudicator to receive and consider submissions, occasioned by breach of these provisions, the determination will be a nullity. On this basis, I agree with the result reached in Emag Constructions Pty. Limited v. Highrise Concrete Contractors (Aust) Pty. Limited [2003] NSWSC 903. I note there is some controversy as to whether denial of natural justice generally results in voidness or voidability (see for example Ridge v. Baldwin [1964] AC 40, Durayappah v. Fernando [1967] 2 AC 337, Banks v. Transport Regulation Board (Vic) (1968) 119 CLR 222 at 233, Calvin v. Carr [1980] AC 574 at 589-90, Minister for Immigration v. Bhardwaj (2002) 209 CLR 597 at 630-34); but in my opinion, in cases such as this where there is a disclosed legislative intention to make a particular measure of natural justice a pre-condition of validity, failure to afford that measure of natural justice does make the determination void.
I61. Where the adjudicator's determination is void for one of the reasons discussed above, then until it is filed as a judgment, proceedings can appropriately be brought in a court with jurisdiction to grant declarations and injunctions to establish that it is void and to prevent it being filed. However, once it has been filed, the resulting judgment is not void. An application can be made to set aside the judgment; and as noted above in pars.[41] and [42], it is not contrary to s.25(4)(a)(iii) to do so on the basis that there is in truth no adjudicator's determination."
36 Plainly the giving of the appropriate notice under section 17 (2) was premature and did not comply with the requirements of section 17 (2) (b) to give an opportunity to provide a payment schedule to the claimant within five business days after receiving the claimant's notice. If this step in compliance with the requirements of the legislation had been taken by the architectural company the course of this litigation might have been quite different. There would have been an opportunity and a reminder to Mr Hawkins that he needed to file a payment schedule. There would thus be some grounds for complaint about the breach of the rules of natural justice in this case.
37 In this case, without telling the plaintiff they intended to do so, the defendant registered the determination as a judgement. In the absence of any claim to restrain that activity they were entitled to take that course.
38 In Brodyn Pty Limited the result is mentioned in paragraph 41 and it has to be seen in the light of what his Honour said at paragraphs 40 to 42 of his judgement which are in these terms:
"40. In my opinion, this irregularity could be a ground for setting aside the judgment: plainly, such a judgment can be set aside on appropriate grounds, whether this be considered as being authorised by rules of court allowing for the setting aside of judgments obtained in the absence of the other party, or implied by s.25(4) itself. If the judgment were set aside, the fact that the determination had been quashed or declared void would preclude the obtaining of another judgment by subsequent compliance with the requirements of ss.24 and 25. Accordingly, such an order would have utility.
41. Further, in my opinion an order of the Supreme Court quashing the determination or declaring it to be void could itself support the setting aside of the judgment. In my opinion, if the determination was quashed or declared void, reliance on there being no determination to support the judgment would not be to challenge the adjudicator's adjudication within s.25(4): this wording assumes that there is a determination which is challenged.