Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd

Building and Construction Industry Security of Payment Act 1999 (NSW) LEGISLATION CITED : Interpretation Act 1987 (NSW) Evidence Act 1995 (NSW)

Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 CASES CITED : Fancourt v Mercantile Credits (1983) 154 CLR 87 Tsoukatos v Mustafa [2007] NSWSC 614

Kittu Randhawa trading as Mystery of Spice PARTIES : Monica Benavides Serrato trading as Innova Design Solutions Michael Watson trading as Innova Design Solutions Mediate Today Pty Ltd trading as Adjudicate Today ACN 065 563 760

COUNSEL : P. Snelgrove - Solicitor (Plaintiff) T. Davie (First and Second Defendants)

SOLICITORS : Snelgroves (Plaintiff) Bannermans, Lawyers (First and Second Defendants)

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY & CONSTRUCTION LIST

55087/2008 KITTU RANDHAWA TRADING AS MYSTERY OF SPICE -V- MONICA BENAVIDES SERRATO TRADING AS INNOVA DESIGN SOLUTIONS & 2 0RD EX TEMPORE JUDGMENT 1 HIS HONOUR: By Amended Summons dated 11 September 2008 the plaintiff moves to set aside an adjudication determination ("the adjudication") under the Building and Construction Industry Security of Payment Act 1999 (NSW) ("the Act") made by the third defendant ("the adjudicator") on 13 March 2008 on the application of the first and second defendants ("the defendants"). 2 Section 19(1) of the Act provides as follows: "If an authorised nominating authority refers an adjudication application to an adjudicator, the adjudicator may accept the adjudication application by causing notice of the acceptance to be served on the claimant and the respondent." 3 Section 31(1)(c) of the Act provides as follows: "By sending it by post or facsimile addressed to the person's ordinary place of business;" 4 Section 31(2) of the Act provides as follows: "Service of a notice that is sent to a person's ordinary place of business, as referred to in subsection (1)(c), is taken to have been effected when the notice is received at that place." 5 Section 76(1) of the Interpretation Act 1987 (NSW) provides as follows: If an Act or instrument authorises or requires any document to be served by post (whether the word "serve", "give" or "send" or any other word is used), service of the document: (a) may be effected by properly addressing, prepaying and posting a letter containing the document, and (b) in Australia or in an external Territory - is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted, and (c) in another place - is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of post. 6 Section 160 of the Evidence Act 1995 (NSW) provides as follows: 160 Postal articles (1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted. (2) This section does not apply if: (a) the proceeding relates to a contract, and (b) all the parties to the proceeding are parties to the contract, and (c) subsection (1) is inconsistent with a term of the contract. (3) In this section: working day means a day that is not: (a) a Saturday or a Sunday, or (b) a public holiday or a bank holiday in the place to which the postal article was addressed. 7 The adjudication application was referred to the adjudicator by an authorised nominating authority. 8 The parties agreed that it is necessary for the adjudication to be valid for notice of acceptance to have been served by the adjudicator on the plaintiff. 9 The plaintiff's sole ground of attack on the validity of the adjudication is that she disputes that notice of the adjudicator's acceptance was served on her. 10 Mr Snelgrove, solicitor, appeared for the plaintiff and Mr Davie of counsel appeared for the defendants. I was assisted by brief but cogent submissions from both. 11 The following facts are not in dispute: a the plaintiff's ordinary place of business was at all material times 78 Owen Street, Glendenning NSW 2761; b on 4 March 2008 an employee of the adjudicator posted the notice of acceptance in an envelope addressed to the plaintiff at that address; c the envelope reached the Nepean delivery facility of Australia Post on 5 March 2008. 12 The plaintiff gave the following affidavit evidence:

"On 28 February 2008 I received an application for adjudication from the first and second defendants. This was delivered by courier.

The next I heard of the adjudication was on 17 March 2008, which stated that the matter had already been determined by the adjudicator. I rang the third defendant to question why I had not been informed of the date of the hearing. I was advised that they had faxed the documentation over to me. I advised them that I did not own a fax machine, therefore it was impossible for me to have received the documentation. On 19 March 2008 I received a copy of the determination delivered by courier from the first and second defendants."

13 The plaintiff relied also on a document produced by Australia Post pursuant to a subpoena in which Australia Post wrote to the Registrar of this Court in the following terms. "Document or records relating to Express Post consignment number CN6392510; A copy of Australia Post tracking of the consignment number CN6392510 is attached. The scan shows that the express post letter was received at Nepean Delivery Facility on 05/03/2008. Australia Post would therefore presume that the item was delivered sometime on the day of 05/03/2008 to the addressee."

14 Although not expressly stated, the plaintiff's evidence contained the implication that she did not receive a notice of acceptance. 15 It was put on behalf of the plaintiff that the defendant's evidence did not establish delivery to her business address because the letter from Australia Post went no further than to state that Australia Post assumed the item was delivered some time on the day of 5 March 2008 to the addressee. 16 The defendants, however, have the benefit of the presumption in s 160 of the Evidence Act and s 76 of the Interpretation Act as to delivery, that is the receipt at the designated address (see Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 at [62]), which the plaintiff may rebut by evidence raising sufficient doubt about that fact (that is, delivery to the designated address). 17 The authorities make it clear that delivery of post to a particular place and receipt of the item by the intended recipient are two different things, and that if delivery is not disproved the fact of non-receipt does not displace the result that the delivery is deemed to be effected at the time at which it would have taken place in the ordinary course of the post; see Fancourt v Mercantile Credits (1983) 154 CLR 87 at 97; Tsoukatos v Mustafa [2007] NSWSC 614 18 The fact that the evidence from the Post Office does not establish actual delivery to the relevant address does not detract from the efficacy of the presumption that it occurred. 19 The plaintiff's evidence at its highest is directed to non-receipt by the intended recipient. It does not provide the necessary doubt to displace the statutory presumption of delivery at the designated address. 20 It follows that it is presumed against her that the service of the adjudicator's notice of acceptance took place. Her challenge to the validity of the adjudication accordingly fails. 21 The summons is dismissed. 22 The plaintiff is to pay the costs of the first and second defendants. 23 I order that the moneys paid into Court by the plaintiff together with any interest accrued thereon, are to be released to the first and second defendants. 24 The orders may be entered forthwith.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.