PRACTICE AND PROCEDURE - Summary disposal application
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Catchwords
PRACTICE AND PROCEDURE - Summary disposal application
Judgment (5 paragraphs)
[1]
For the reasons set out above, I am satisfied that the Applicants were sent the Notices to Show Cause on 20 December 2024 and that they received them. Despite being given a luxurious period in which to respond, the Applicants did not make any submissions in response to the Notices to Show Cause. Even if I am wrong in making that finding, the failure of the Respondent to give the Applicants a Notice to Show Cause does not invalidate the Respondent's decision to take disciplinary action against them in the manner set out and for the reasons described in the notice provided on that date under the Home Building Act 1989 (NSW), ss 62 and 64.
[2]
The Applicants sought, in the alternative, that the Tribunal remit the decisions back to the Respondent for reconsideration. I have declined to make such an order, having regard to the circumstances in which the internal review was determined with the benefit of having received lengthy submissions from the Applicants.
These proceedings are to be listed for directions for the timetabling of the matter to final hearing without further delay.
[3]
The Applicants sought the costs of their application for summary disposal. Had these proceedings been brought in a court, it might be expected that costs would follow the event, and, as they were not successful in obtaining the relief they sought, they may have been liable to pay the costs of the Respondent.
This Tribunal has statutory considerations and thresholds, most particularly under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW). The starting position under s 60 is that each party is to bear its own costs. Costs may be made where the Tribunal is satisfied that special circumstances exist that warrant the making of such an award. Here, the Applicants have been unsuccessful; there are no special circumstances, and accordingly, I make no order as to costs.
[4]
(1) The application for summary disposal and remittal to the respondent for reconsideration is dismissed.
(2) The applications for a stay of the respondent's decisions to suspend the authorities are dismissed.
(3) The proceedings are listed for directions on 30 September 2025 at 11:30am.
[5]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Legislation Cited (5)
Building Act 1989
Transactions Act 2000
Construction Industry Security of Payment Act 1999
Construction Industry (Security of Payment) Act 2021
In their respective submissions, both the Applicant and the Respondent engaged in a discourse of the application of s 13A of the Electronic Transactions Act and the authorities considering that provision, which are largely concerned with communications made in furtherance of, for example, the Building and Construction Industry Security of Payment Act 1999 (NSW). That is a particular legislative scheme which the High Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd(2018) 264 CLR 1 at [40], quoting Aronson et al, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) at 1070 [18.200], has described as imposing time limits that are "brutally fast"; and which, unlike the Home Building Act, does not have any express provision concerning what constitutes service of claims and notices.
In particular, the Applicant referred the Tribunal to Tackelly No 8 Pty Ltd as trustee for Tackelly No 8 Trust v Reward Interiors Pty Ltd t/as Reward Group[2025] NSWSC 300, where Peden J was considering whether the factual scenario of an email that attached another email within which was a link to a file repository had been given within the requisite time frame required under the applicable security of payments legislation. After a comprehensive review of the relevant authorities, many of which the parties in this matter referred to, Her Honour determined at [87]-[88] that:
Section 13A of the Electronic Transactions Act is phrased in terms where the parties are capable of contracting out from its requirements, see, for example, Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed)[2025] NSWCA 161 per McHugh JA at [48]. I am not persuaded that s 13A is, in fact, the only section in the Electronic Transactions Act that has practical application in this case. That is because s 123 of the Home Building Act regulates the giving or service of notices and provides that documents and notices are "given" or "served" when they are sent. Therefore, to the extent that the Electronic Transactions Act applies to this case, the more relevant provision is s 13, which is concerned with the time of dispatch of electronic communications. That section relevantly provides:
Mr Nicholson stated that he was on leave from 20 December 2024 until early February 2025, or after January 2025 and that during that period of leave, "I do not believe I reviewed emails from this period until about early February 2025". He does not directly deny having received the emails on 20 December 2024.
It was Mr Nicholson's affidavit evidence that it was only on 6 February 2025, when he received a further "unsolicited" phone call from an officer of the Respondents, that he was informed that his builder's licence had been cancelled. After that call, he was re-sent the email that the Respondent previously forwarded to him on 20 December 2024 and a second email containing instructions to verify his identity, which would be required before he could open any of the documents attached to the 20 December 2024 email. Mr Nicholson annexed a copy of the 6 February 2025 email he received; I note that it bears a time stamp of 11:57 AM. The email, in bold text, states that there are links to important documents relating to his licence. The email provides instructions on the identity verification process that must be completed before accessing the documents. Annexed to his first affidavit is a copy of the Notice Show to Cause, which is consistently referred to in his affidavit and the written submissions of the Applicants as the "Purported Notice to Show Cause".
The day after receiving the 6 February 2025 email, Mr Nicholson contacted the Respondent and asked for a meeting and that the decision be put on hold until an internal review was carried out. He then started working on a document for the internal review, which he lodged with the Respondent on about 20 February 2025.
The intended effect of Mr Nicholson's evidence was that, despite being the director of a building company and having received a telephone call from someone at the Building Commission NSW, he did not, for a period of more than six weeks, take any step to review any emails received to the Company's email account. However, his evidence on this point is contradictory. Mr Nicholson stated that he did not activate the code or open the attachment, which suggests that he was, in fact, aware of the email being received and simply elected not to open it until the deadline for a response had passed. Later, in the submissions he prepared after cancellation, he suggested that since the email had been "overlooked", then it was in some way not capable of being retrieved by him on his return from leave.
According to the evidence, Mr Nicholson's return from leave on Monday, 20 January 2025, would have still given him four days in which to respond to the Notices to Show Cause. I note, however, that in the tabular chronology appended to the Applicants' submissions, the Applicants say that, in the period between 20 December 2025 and 6 February 2025, Mr Nicholson "was on leave and then on site for the start of projects" and relies on paragraph 4 of Mr Nicholson's first affidavit in support of that item. Paragraph 4 of Mr Nicholson's affidavit does not say anything about Mr Nicholson being on site for the start of projects, and I reject that submission on the basis that it is unsupported by any evidence.
(2018) 264 CLR 1
I do not accept Mr Nicholson's evidence that he was unaware of, and did not review, any emails for a period of six weeks until some date "after January 2025" when he says he returned from leave. That is because the evidence is inconsistent with his other evidence, including his submission to the Respondent of 20 February 2025, in which he writes that he returned to the office on 20 January 2025, and elsewhere in the submissions he made to the Respondent, where he states that he had decided not to activate the security code. I do not accept his evidence that he did not look once, even cursorily, at his email inbox for a period of nearly six weeks; that evidence stretches the bounds of credulity in circumstances where he was a company director, with a lengthy history of being able to send and receive emails.
Accordingly, I find that Mr Nicholson was at least aware that the Respondent had sent him an email prior to the expiry of the period within which the Applicants were to make submissions in response to the Notices to Show Cause. I have concluded, from the fact that the subject line of each of the emails sent on 20 December 2024, that Mr Nicholson could have been in no doubt about the importance of those communications.
For reasons which he has not explained, I am satisfied that Mr Nicholson received but did not read, deal with or respond to the emails sent by the Respondent until he was contacted again by the Respondent in early February 2025.
It was not within the Respondent's power to ensure Mr Nicholson opened or read the emails sent to him.
To that end, an electronic communication is received when it is capable of being retrieved: Electronic Transactions Act,s 13A(1)(a). An email, as an electronic communication, has been found to be capable of being retrieved regardless of whether the recipient has read or opened it and even where, in that case, the email has been diverted from the usual inbox and directed into a folder in the recipient's email system that has been set up for spam messages: Bauen Constructions Pty Ltd v Sky General Services Pty Ltd[2012] NSWSC 1123. In Bauen at [77]-[78], Sackar J observed: