//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWCA 133
appellant. Appeal allowed. Orders 1, 2 and 4 made by the primary judge on 29 May 2025 were set aside. Prayers 15 to 18 of the amended summons were dismissed, Tackelly was ordered to pay costs relating to the...
The Court of Appeal decided that Western Australia’s one-business-day deadline for giving the other party an adjudication review application is a jurisdictional requirement. Tackelly’s email contained a link to a Mimecast repository rather than the review documents themselves. By majority, the Court held that this did not give the documents by email within the statutory meaning, because the recipient first had to access the link and download them. The Court allowed Reward’s appeal. Ward P agreed that the deadline was jurisdictional but would have found the documents were otherwise provided when the link was sent.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,386 words · generated 07/10/2026
The dispute arose from a contract for design and construction work connected with the refurbishment of a hotel in Perth. Reward Interiors Pty Ltd (Reward) was engaged by Tackelly No 8 Pty Ltd (Tackelly) under a contract made on or around 22 December 2023. The contract included cl 7.1, which provided that a notice or other communication given under the contract documents would be deemed given and received if in writing, signed, and posted, delivered, or sent by email in the form of a letter attachment [7]-[9].
12 cited instruments linked from this judgment.
After the contractual relationship deteriorated, Reward served a payment claim under the Building and Construction Industry (Security of Payment) Act 2021 (WA) (WA SOP Act) on 3 September 2024. It claimed $10,623,382.70 and return of two bank guarantees [10]. Tackelly’s superintendent issued a payment schedule with a negative amount of approximately $1.35 million [11].
Reward then applied for adjudication. On 25 November 2024, the adjudicator found in Reward’s favour, determining that $2,607,168.96 plus interest was payable, that the bank guarantees should be returned, and that Tackelly should pay the adjudicator’s costs [12]-[14].
Tackelly applied for an adjudication review on 2 December 2024. That evening, its solicitors emailed Reward’s managing director and solicitor. The email did not attach the application files themselves. Instead, it attached another email containing a link to download a zip file from Mimecast [15]-[18]. The parties admitted that the files could be accessed and downloaded from the repository on the date the email was sent [20]. Reward’s managing director read the email shortly after receiving it but did not access the link at that time. The material was downloaded on 4 December [21]-[22].
The statutory deadline in s 42(3) required Tackelly to give Reward a copy of the review application within one business day after making it. Reward later argued that the deadline had not been met and the review adjudicator had no jurisdiction. The review adjudicator accepted that position on 13 January 2025 [23]-[24].
The primary judge agreed that s 42(3) had not been complied with, but held that the deadline was not a jurisdictional precondition. Reward appealed that conclusion. Tackelly’s notice of contention argued that the primary judge had been wrong to find that the Mimecast process did not amount to giving the documents in time [2]-[4].
The Court of Appeal allowed Reward’s appeal. All three judges agreed that the one-day requirement was jurisdictional. On whether the documents had been given by the email-link method, Ward P dissented. McHugh JA and Free JA, forming the majority, concluded that the link did not give the application documents within the relevant statutory meaning [120]-[125].
The first question was whether s 42(3) was a jurisdictional requirement. The Court approached this as a question of statutory construction: whether Parliament intended that failure to comply with the requirement would invalidate the relevant step or whether the step’s validity should be preserved despite non-compliance [63]-[65]. That inquiry considered the text, structure and purpose of the Act, not simply whether the section used the word “must”.
The statutory setting mattered. The WA SOP Act aims to provide an effective and fair process for securing payment and expressly includes an expedited procedure for payment claims and adjudication of disputes [31]. The Act includes a review mechanism with closely connected timeframes. For example, a review response may be given within ten business days after receiving the application [40], and the review adjudicator’s determination is subject to further statutory deadlines [42]-[45].
Ward P considered that the one-business-day service requirement was part of this “carefully calibrated” process. If service could occur later without affecting jurisdiction, the starting point for subsequent timeframes would become uncertain and the review process could be delayed [69]-[71]. The express one-day period, particularly when the East Coast Model did not impose an equivalent period for review applications, supported the view that Parliament intended expedition [67], [70]. The Court therefore held that s 42(3) was jurisdictional. McHugh JA and Free JA agreed [120], [124].
The second question was about the method of service. Section 113 governs the giving of documents in the relevant statutory circumstances. Section 113(2) directs parties to use a manner provided in the contract where applicable and reasonably practicable, or otherwise a method in s 113(3). Ward P held that cl 7.1 did not prescribe a method for this statutory review application. It was a facilitative deeming clause, and the review application was not a document given under the contract documents [101]-[106]. McHugh JA agreed [121].
The disagreement concerned s 113(3)(d), which permits a document to be given “by email” to an email address specified for documents of that kind. Section 113(1) expands “give” to include “serve, send or otherwise provide”. Free JA reasoned that the statutory definition should be read into the operative provisions before construing them [133]. The analysis also considered s 113(3)(e), which contemplates methods such as electronic databases and other means by which a document can be accessed electronically, if authorised by regulation [137]-[141].
For Free JA, the text and structure distinguished providing a document from providing a way to access it. An email attachment is received with the email. By contrast, a link to a repository is a means of access; the recipient must take further steps before the documents are in their possession or control [142]-[144]. That distinction led the majority to conclude that Tackelly had not given the application documents by email within the one-business-day period [122]-[125].
Ward P read “otherwise provided” more broadly. In her view, the documents had been otherwise provided when the link was sent, particularly given that the repository could be accessed and downloaded immediately [114]-[117]. The split therefore concerned the meaning of “otherwise provided” and the significance of s 113(3)(e), not the jurisdictional status of s 42(3).
The judgment addresses a question specific to Western Australia’s statutory review process. The WA SOP Act provides an additional review layer between the original adjudication and court proceedings, a feature described in the reasons as unique compared with similar regimes elsewhere [1], [32]. The decision does not purport to decide the status of service provisions under other jurisdictions’ legislation.
Before this appeal, the primary judge had held that service within one business day was not a precondition to the review adjudicator’s jurisdiction, although she found that Tackelly had not complied with the deadline [2], [47]-[53]. The Court of Appeal reversed that legal conclusion. Under this judgment, s 42(3)’s one-day requirement is jurisdictional, as the text, statutory structure and expedited purpose indicate [66]-[74].
The Court’s decision also gives a majority construction of s 113(3)(d) in the context of a link to a private document repository. The majority distinguishes emailing the documents themselves, such as as attachments, from emailing only a link through which the recipient can later obtain them [142]-[144]. The judgment does not establish that every electronic link is ineffective under every statutory or contractual arrangement. Its analysis is tied to s 113 and the absence of a contractual or regulatory method authorising this particular repository method [130]-[147].
The reasons also leave room for other methods. Free JA noted that the contract could provide for a different method, and that regulations could authorise an electronic database method under s 113(3)(e) [147]. The judgment does not determine the validity of any such alternative in a different case.
At [63]-[65], Ward P explains that the jurisdiction question is one of statutory construction. The court asks whether Parliament intended non-compliance to invalidate the act, considering the requirement’s nature, place in the scheme, consequences, and the effects of treating it as jurisdictional. In plain English, “must” is relevant, but the answer comes from reading the provision in its full legislative setting.
At [67], Ward P treats the one-day deadline as part of a tightly timed process designed for speedy payment dispute resolution. The one-day limit was a deliberate feature of Western Australia’s review process. In plain English, the court considered that the deadline had an operational role, not merely a technical or administrative one.
At [70]-[71], Ward P explains that allowing service outside the one-day period without jurisdictional consequences could create uncertainty about when later response and determination periods begin. In plain English, the deadline helps anchor the timetable for the rest of the review.
At [133], Free JA sets out the method for construing a statutory definition: read the defined meaning into the provision and then construe it in context. Applied here, “give” includes “serve, send or otherwise provide”. That expanded wording did not, in the majority’s view, make a link identical to providing the documents themselves.
At [142]-[144], Free JA states the key distinction. When a document is attached to an email, the document is received with the email. When the email contains only a link to a repository, further steps are needed before the document is accessed and downloaded. In plain English, sending a route to the document is not the same as sending the document, for this provision.
At [147], Free JA acknowledges the practical difficulty of transmitting a large file set but explains that practical inconvenience does not determine the statutory meaning. The judgment identifies possible routes for different arrangements: contractual agreement or regulatory authorisation. It does not decide that the Mimecast method would be authorised under either route in another case.
The jurisdiction holding is most directly relevant where a party applies for a review under the WA SOP Act and the other party disputes whether the application was given within one business day. The decision treats that deadline as jurisdictional, so the timing and method by which the application is given may affect whether the review adjudicator has authority to determine it [66]-[74].
The service holding is particularly relevant to an arrangement where the sender emails a link to documents held in an online repository, rather than attaching the documents themselves, and relies on s 113(3)(d). The majority’s reasoning focuses on whether the recipient receives the documents by email or merely receives a means to access them [142]-[144]. The case involved a large zip file and an immediately accessible link, but the majority’s conclusion did not turn on a recipient deliberately avoiding service. The reasons record that no such avoidance was alleged [22].
The contract issue is relevant where a construction contract contains a clause about notices, but the disputed document is a statutory review application. Here, the Court found the clause was facilitative and did not govern the statutory application [101]-[106]. The existence, wording and scope of any contract clause may matter in another case, but this judgment does not resolve all possible contractual methods.
The judgment’s limits are also important. The Court considered a particular statutory scheme, a particular statutory definition, and an email containing a Mimecast link. A different statute, an express contractual provision, a regulation authorising a database method, or a different means of transmitting documents may present different questions.
The supplied judgment does not report any later judicial treatment of this decision. It was decided on 15 July 2026, and the document provided does not identify subsequent cases applying, distinguishing or reconsidering it. No claim about its treatment after that date can therefore be made from this source.
The judgment itself discusses authorities available to the Court when it decided the appeal. For jurisdictional construction, it refers to authorities including Project Blue Sky and Plaintiff M70 [63]-[65]. It also considers Chase Oyster Bar and Miller in relation to the significance of mandatory language [67]. These authorities inform the Court’s reasoning; they are not later treatment of Reward Interiors.
On electronic service, the Court discusses Basetec, McCarthy and Parkview. Ward P considered that those authorities did not compel the primary judge’s conclusion because they did not deal with the same statutory wording and, in the case of Parkview, the relevant NSW provision lacked the expanded definition later considered here [109]-[113]. Free JA’s majority analysis instead centres on the wording and structure of s 113 itself [133]-[147].
The judgment also refers to the 2025 NSWCA decision in Rewais when discussing arguments made by Tackelly about avoiding technical disputes under security of payment legislation [91]. That is a cited authority considered in argument, not subsequent treatment of the present decision.
The decision leaves several issues to be answered in future cases. First, it does not determine how s 113(3)(d) applies to other electronic transmission methods or systems. The majority addressed an email containing a link to a Mimecast repository, distinguishing that from an email attachment [143]-[147]. The exact treatment of other platforms or technical arrangements would depend on their operation and the statutory language.
Second, the Court did not decide the effect of a contract that expressly permits or requires service through a link to a document system. Free JA observed that contractual agreement could provide a route for such a method under s 113(2)(a) [147]. The judgment’s conclusion about cl 7.1 was that it was facilitative and did not govern this statutory review application [101]-[106].
Third, the Court did not determine whether regulations could authorise a particular private database method in a future case. It noted that s 113(3)(e) provides for regulatory authorisation of additional methods, including electronic access arrangements [137]-[141], [147]. The judgment addresses the method used here in the absence of applicable authorisation.
Fourth, Ward P’s dissent means that the scope of “otherwise provided” was contested within the Court. Ward P regarded the documents as provided when the link was sent; Free JA, with McHugh JA agreeing, considered that the link provided access rather than the documents [114], [122]-[125], [142]-[147]. Future applications will need to follow the majority’s construction while recognising the factual and textual basis for the disagreement.
Finally, the judgment confirms the jurisdictional character of the one-day requirement but does not decide every possible question about how it operates in different circumstances, such as disputes over the time an email is received or whether a particular address was specified for documents of that kind. Those questions are not resolved in the supplied reasons.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on it, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Reward Interiors Pty Ltd t/s Reward Group v Tackelly No 8 Pty Ltd atf Tackelly No 8 Trust [2026] NSWCA 133
Hearing dates: 16 February 2026
Date of orders: 15 July 2026
Decision date: 15 July 2026
Before: Ward P at [1]; McHugh JA at [119]; Free JA at [124]
Decision: 1. Appeal allowed.
2. Set aside orders 1, 2 and 4 made by the primary judge on 29 May 2025 and in lieu thereof order:
a. Prayers 15 to 18 of the final relief sought in the amended summons be dismissed.
b. The plaintiff is to pay the first defendant’s costs in respect of the questions determined by the Court in Tackelly No 8 Pty Ltd atf Tackelly No 8 Trust v Reward Interiors Pty Ltd t/as Reward Group [2025] NSWSC 300.
3. The proceedings are remitted to the primary judge for further directions and the determination of any remaining issues in the proceedings.
4. The first respondent is to pay the appellant’s costs.
Catchwords: BUILDING AND CONSTRUCTION — Adjudication Review Application under the Building and Construction Industry (Security of Payment) Act 2021 (WA) — requirement under s 42(3) of that Act for an applicant making an adjudication review application to give a copy of that application to the other party within one business day after the application is made — statutory construction — whether s 42(3) is a jurisdictional precondition — whether the review adjudicator fell into jurisdictional error
BUILDING AND CONSTRUCTION — Statutory Construction — interpretation of s 113 of the Building and Construction Industry (Security of Payment) Act 2021 (WA) requiring the giving of a document in the manner provided for in the contract or in s 113(3) of that Act — whether the primary judge erred in finding that the respondent did not comply with the time requirement in s 42(3) by sending an email with an attached email providing a Mimecast link to the application documents
Legislation Cited: Building and Construction Industry (Security of Payment) Act 2021 (WA), ss 3, 25, 30, 39, 40, 42, 44, 45, 46, 47, 113
Building and Construction Industry (Security of Payment) Bill 2021 (WA)
Building and Construction Industry (Security of Payment) Regulations 2022 (WA), r 22
Building and Construction Industry Security of Payment Act 1999 (NSW), ss 14, 17, 31
Electronic Transactions Act 2001 (Qld), s 11
Explanatory Memorandum and Second Reading Speech, 26 May 2021 to the Building and Construction Industry (Security of Payment) Bill 2021
Interpretation Act 1987 (NSW), Sch 4 – Dictionary
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 9
Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA), s 4
Cases Cited: Anvil Hill Project Watch Assn Inc v Minister for the Environment and Water Resources (2008) 166 FCR 54; [2008] FCAFC 3
Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261
BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd (2022) 108 NSWLR 350; [2022] NSWCA 82
Builtcom Constructions Pty Ltd v VSD Investments Pty Ltd as trustee for The VSD Investments Trust (No 2) [2025] NSWCA 134
Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215
Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441; [2017] VSC 251
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
Chief Commissioner of State Revenue (NSW) v Uber Australia Pty Ltd (2025) 118 NSWLR 164; [2025] NSWCA 172
Claire Rewais and Osama Rewais t/as McVitty Grove v BPB Earthmoving Pty Ltd [2025] NSWCA 103
Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2015] 1 Qd R 265 [2014] QSC 30
Demex Pty Ltd v John Holland Pty Ltd (2022) 12 QR 438; [2022] QSC 259
El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78; (2023) 256 LGERA 24
EnerMech Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd (2024) 115 NSWLR 56; [2024] NSWCA 162
Equa Building Services Pty Ltd v KLG Trading Pty Ltd [2021] NSWSC 1674; (2021) 38 BCL 324
Falgat Constructions Pty Limited v Equity Australia Corporation Pty Limited [2006] NSWCA 259; (2006) 23 BCL 292
Federal Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 41 FLR 277; [1979] FCA 45
Forme Two Pty Ltd v McNab Developments (Qld) Pty Ltd [2025] QSC 96
Inghams Enterprises Pty Ltd v Hannigan [2020] NSWCA 82; (2020) 379 ALR 196
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
Martinus Rail Pty Ltd v Co-operative Bulk Handling Ltd [2025] WASC 373
Martinus Rail Pty Ltd v Qube RE Services (No.2) Pty Ltd [2025] NSWCA 49
McCarthy v TKM Builders Pty Ltd (2020) 5 QR 722; [2020] QSC 301
Miller v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 278 CLR 628; [2024] HCA 13
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
Nair v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 60; [2021] FCA 249
National Management Group Pty Ltd v Biriel Industries Pty Ltd (t/as Master Steel) [2019] QSC 219
Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd [2019] QSC 91
Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd (2019) 2 QR 190; [2019] QCA 177
Parkview Constructions Pty Ltd v Total Lifestyle Windows Pty Ltd (t/as Total Concept Group) [2017] NSWSC 194
Plaintiff M70/2011 v The Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed) [2025] NSWCA 161
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liq) (2019) 99 NSWLR 317; [2019] NSWCA 11
Sharvain Facades Pty Ltd (Administrators Appointed) v Roberts Co (NSW) Pty Ltd [2025] NSWSC 606
Tackelly No 8 Pty Ltd v Reward Interiors Pty Ltd t/as Reward Group [2025] NSWSC 300
Tasker v Fullwood [1978] 1 NSWLR 20
Texts Cited: Fiocco, John, Final Report to the Minister for Commerce: Security of Payment Reform in the WA Building and Construction Industry (October, 2018)
Category: Principal judgment
Parties: Reward Interiors Pty Ltd t/as Reward Group (Appellant)
Tackelly No 8 Pty Ltd (First Respondent)
Max Tonkin (Second Respondent)
Adjudicate Today Pty Ltd (Third Respondent)
Resolution Institute (Fourth Respondent)
Neil Kirkpatrick (Fifth Respondent)
Representation: Counsel:
D T Miller SC and M Thompson (Appellant)
M Christie SC with B Mostafa and M J Brunker (First Respondent)
Solicitors:
HWL Ebsworth Lawyers (Appellant)
Vincent Young Lawyers (First Respondent)
File Number(s): 2025/00238817
Publication restriction: Nil
These proceedings arose out of an Adjudication Review Application made under the Building and Construction Industry (Security of Payment) Act 2021 (WA) (WA SOP Act). Reward Interiors (the appellant) was engaged by Tackelly No 8 Pty Ltd (the first respondent) to undertake design and construction works associated with the refurbishment of a hotel in Perth. The parties entered into a contract on or around 22 December 2023. Relevantly, cl 7.1 of the contract provided that a notice (and other communications given under the Contract documents) shall be deemed to have been given and received if in writing and signed by or on behalf of the sender and if posted or delivered or sent by email in the form of a letter attachment.
On 3 September 2024, the appellant served on the respondent a Payment Claim under the WA SOP Act. On 17 September 2024, the respondent’s superintendent served on the appellant by email a payment schedule. On 16 October 2024, the appellant lodged an Adjudication Application which was served by hand on the first respondent at its registered office the next day. The Adjudicator delivered his decision on 25 November 2024, finding in the appellant’s favour (the Adjudication Determination).
On 2 December 2024, the respondent applied for a Review of the Adjudication Determination and later that same day at 7.33pm AEDT, sent an email to the appellant’s managing Director, Mr Donohue, with an email attachment containing a link to download the files in a Mimecast repository. On 16 December 2024, the appellant provided its Adjudication Review Response, alleging that the review adjudicator lacked jurisdiction as the Adjudication Review Application had not been given to the appellant within one business day after the application had been made as required under s 42(3) of the WA SOP Act. On 13 January 2025, the review adjudicator found that he lacked jurisdiction as s 42(3) was a condition precedent to the exercise of jurisdiction and it was not complied with (the Review Determination).
The respondent commenced proceedings in the NSW Supreme Court to set aside the Adjudication Determination and the Review Determination. The primary judge held that s 42(3) of the WA SOP Act was not complied with, but that it was not a jurisdictional precondition and therefore the review adjudicator had fallen into jurisdictional error.
The appellant appeals from the primary judge’s conclusion that the one-day timeframe in s 42(3) was not a precondition to the jurisdiction of a review arbitrator (the jurisdiction issue). The first respondent filed a notice of contention, contending that the primary judge erred in finding that it failed to comply with s 42(3) of the WA SOP Act by giving the appellant a copy of its Adjudication Review Application within one business day, as none of the methods of “giving” a document provided for in s 113 of the WA SOP Act was complied with (the service issue).
The Court (McHugh JA and Free JA, Ward P dissenting as to the service issue and as to the consequential orders to be made) allowing the appeal with costs:
(1) The primary judge erred in concluding that the s 42(3) requirement was not a precondition to jurisdiction. An analysis of the text, the structure of the legislative scheme and the purpose of the WA SOP Act favours the construction of s 42(3) as a jurisdictional requirement: Ward P at [63]-[65], McHugh JA agreeing at [120], Free JA agreeing at [124].
El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78; (2023) 256 LGERA 24; Project Watch Assn Inc v Minister for the Environment and Water Resources (2008) 166 FCR 54; [2008] FCAFC 3; Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441; [2017] VSC 251; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Plaintiff M70/2011 v The Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32; Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261 cited and applied.
(2) Section 42(3) is part of a review process with carefully calibrated timeframes that appear intentionally to have been chosen to set a “brutally fast” security of payment regime for speedy determination of payment claims. The deliberate inclusion of a one-day time limit indicates Parliament’s intention for expedition of the review process. Further, whilst not determinative, the mandatory language of s 42(3) as compared with the permissive language used in other provisions, is an indication that compliance with the provision is an essential precondition to jurisdiction: Ward P at [67], [69]-[71], McHugh JA agreeing at [120], Free JA agreeing at [124].
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190; Miller v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 278 CLR 628; [2024] HCA 13 cited and considered.
(3) The Adjudication Review Application documents were not documents “given under the contract documents”. Clause 7.1 of the contract is facilitative not prescriptive and does not “provide” for the manner of service for the purposes of s 113(2)(a) of the WA SOP Act. The contract did not oblige or permit the making of the adjudication review application, nor did it govern or control its existence: Ward P at [101], McHugh JA agreeing at [121], Free JA agreeing at [131].
Chief Commissioner of State Revenue (NSW) v Uber Australia Pty Ltd (2025) 118 NSWLR 164; [2025] NSWCA 172; Inghams Enterprises Pty Ltd v Hannigan [2020] NSWCA 82; (2020) 379 ALR 196 cited and considered.
Free JA, McHugh JA agreeing:
(4) The first respondent did not, in the relevant statutory sense, “give” a copy of the review application and accompanying documents to the appellant by 3 December 2024 as required under s 42(3) of the WA SOP Act. Properly construed, none of the methods of “giving” documents authorised by s 113(a)-(e) of the WA SOP Act was complied with: Free JA at [125], [128]-[147], McHugh JA agreeing at [122]-[123].
(5) Where a term in a statute is expressly defined, as “give” is for the purposes of s 113 of the WA SOP Act, the proper course is to read the words of the definition into the substantive enactment and then construe the substantive enactment. The word given in the chapeau of s 113(3) should be read as if it says that any document may be “given, served, sent or otherwise provided” by one or other of the methods in subparas (a) to (e): Free JA at [133], McHugh JA agreeing at [122]-[123].
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 1 cited and applied.
(6) There is a distinction between “giving” or “providing” a document to someone and providing a means by which that person “can access the document”. A document may be given or provided by email when the document is attached to the email. Such a document is received by the email service of the recipient when the email is received. However, where the only thing which is given or provided by email is a link to an online repository, the documents are not given or provided “by email” as further steps need to be taken by the recipient to obtain access to the documents: Free JA at [142]-[143], McHugh JA agreeing at [122]-[123].
Ward P (in dissent on the service issue):
(7) The Security of Payment Regulations do not assist in answering whether s 113(3)(d) of the WA SOP Act, read with the definition of “give” in s 113(1), is satisfied by emailing a link to a repository from which documents may be immediately accessed and downloaded. Section 113(d) should not be construed narrowly on account of s 113(3)(e): Ward P at [107].
(8) The Adjudication Review Application was “otherwise provided” to the appellant within the meaning of s 113(3)(d) of the WA SOP Act. The fact that one had to click on another email and then on the link to the Mimecast repository, does not mean that it was not “provided” to the recipient email. Once accessed and downloaded, the appellant had the documents in possession. The authorities to which the primary judge referred to for the finding on the service issue do not compel the conclusion that the primary judge reached: Ward P at [109]-[117].
WARD P: These proceedings raise an issue of statutory construction in respect of a provision of the Building and Construction Industry (Security of Payment) Act 2021 (WA) (WA SOP Act), namely s 42(3), which requires that an applicant making an adjudication review application (a limited appeal from an adjudication decision to a senior adjudicator) must give a copy of the application (and any accompanying documents) to the other party within one business day after the application is made. The ability to seek an adjudication review prior to curial review of an adjudication decision is unique to the Western Australian security of payment (SOP) regime compared to similar regimes in other jurisdictions such as New South Wales.
The primary judge found that s 42(3) of the WA SOP Act had not been complied with by the first respondent in the present case (for the reasons explained in due course) but held that compliance with s 42(3) is not a jurisdictional precondition and therefore that the review adjudicator, who had concluded otherwise on that jurisdictional issue, had fallen into jurisdictional error (Tackelly No 8 Pty Ltd as trustee for Tackelly No 8 Trust v Reward Interiors Pty Ltd t/as Reward Group [2025] NSWSC 300) (the primary judgment).
The appellant, Reward Interiors Pty Ltd t/as Reward Group, appeals from the primary judge’s conclusion that the one day timeframe in s 42(3) of the WA SOP Act was not a precondition to the jurisdiction of a review arbitrator and hence that non-compliance with that timeframe did not mean that the review arbitrator lacked jurisdiction (the jurisdiction issue).
The first respondent, Tackelly No 8 Pty Ltd as trustee for Tackelly No 8 Trust, has filed a notice of contention in which it contends that the primary judge’s decision should be affirmed on the ground that her Honour erred in finding that it failed to give the appellant a copy of its Adjudication Review Application within one business day as required by s 42(3) (the service issue).
Each of the second to fifth respondents has filed a submitting appearance.
For the reasons that follow, I consider that the primary judge erred in concluding that the s 42(3) requirement was not a precondition to jurisdiction but that her Honour also erred in finding that there was no compliance with s 42(3) by the first respondent. In those circumstances, the relief sought by the appellant should not be granted.
On or around 22 December 2023, the appellant and the first respondent entered into a contract by which the first respondent engaged the appellant to undertake design and construction works associated with the refurbishment of a hotel in Perth (primary judgment at [2]).
Relevantly, for the purpose of some of the arguments raised on the service issue, I note that the contract provided the following as to service of notices (cl 7.1):
7.1 Services [sic] of Notices
A notice (and other communications given under the Contract documents) shall be deemed to have been given and received if in writing and signed by or on behalf of the sender and:
(a) if posted or delivered; or
(b) sent by email in the form of a letter attachment to [sic]
to the address stated in Annexure Part A or such other address as is last notified by the intended recipient to the sender.
Clause 7.2 provides that a notice sent under cl 7.1 will be conclusively taken to be duly given or made on the earliest of three dates, those including the date of actual receipt and, in the case of email, at the time in the place to which it is sent, equivalent to the time shown in the automatic receipt notification received by the sender or the time that the notice enters an information system which is under the control of the recipient.
Returning to the relevant chronology, on 3 September 2024 (after the first respondent had issued a Take Out Notice, purporting to take all work remaining under the contract out of the appellant’s hands but otherwise keeping the contract on foot, and the appellant had then served a Termination Notice in respect of the contract), the appellant served on the first respondent a Payment Claim under the WA SOP Act, claiming a sum of $10,623,382.70 together with the return of two Bank Guarantees that it had provided on or around 15 May 2024 (primary judgment at [3]-[4]).
On 17 September 2024, the first respondent’s superintendent (on behalf of the first respondent) served on the appellant by email a Payment Schedule, scheduling a negative amount of approximately $1.35 million and asserting that there was no basis for the return of the Bank Guarantees (primary judgment at [5]).
On 16 October 2024, the appellant lodged an Adjudication Application with the third respondent, Adjudicate Today Pty Limited, by hand delivering the application to the third respondent’s Queensland offices. The Adjudication Application was served by hand on the first respondent at its registered office the next day.
On 31 October 2024, the first respondent lodged an Adjudication Review Response through the third respondent’s online platform.
On 25 November 2024, the Adjudicator (the second respondent) delivered his decision, finding in the appellant’s favour that an amount of $2,607,168.96 plus interest was payable; that the appellant was entitled to the return of the Bank Guarantees; and that the first respondent should pay 100% of the Adjudicator’s costs (the Adjudication Determination) (primary judgment at [7]).
On 2 December 2024, the first respondent applied for a Review of the Adjudication Determination and sent an email to the fourth respondent, Resolution Institute, with the Adjudication Review Application (primary judgment at [8]).
Later that same day, at 7.33pm AEDT (4:33pm WST), the first respondent’s solicitors sent an email (the 2 December Email) to the appellant’s Managing Director, Mr Donohue, and its solicitor, Mr Terret. That email included the statement (seemingly generated by use of the “Mimecast” large file sending function) that “I’m using Mimecast to share large files with you. Please see the attached instructions”. In the body of the text message, there was the statement “[p]lease find attached by way of service” two letters of service (on Reward and on Resolution Institute) and “enclosed adjudication review application and accompanying documents by way of a Mimecast large file send”.
It is convenient at this stage to set out some background to the applicable version of the WA SOP Act before turning to the relevant provisions. Historically, the Western Australian SOP regime differed from the equivalent regimes in other Australian states. In October 2018, Professor John Fiocco produced a report for the Western Australian Government, entitled “Final Report to the Minister for Commerce: Security of Payment Reform in the WA Building and Construction Industry”, recommending that Western Australia bring its SOP regime into line with the rest of Australia.
Consistently with those recommendations, in 2021, the Western Australian government introduced the Building and Construction Industry (Security of Payment) Bill 2021 to reform the Western Australian SOP regime and to bring it into line with what has been referred to as the “East Coast Model” (see Second Reading Speech, Western Australian Hansard Legislative Council 26 May 2021 (Darren West, p 766C, 1)). The East Coast Model is designed to be a fast, quick and efficient means through which to resolve disputes between principals and subcontractors based on the idea of “pay now, argue later” (see Martinus Rail Pty Ltd v Qube RE Services (No.2) Pty Ltd [2025] NSWCA 49 (Martinus Rail v Qube) at [8], [292] per Payne JA, Gleeson JA and Griffiths AJA agreeing).
The WA SOP Act was drafted to adopt many of the “brutally fast” (see Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [40]) components of the East Coast Model (Explanatory Memorandum, 4). It was intended to ensure that the adjudication process is as quick and efficient as possible so that “payment flows through the contracting chain with minimum disruption” (Explanatory Memorandum, 4). The Explanatory Memorandum to the Bill stated (at 3) that:
The purpose of the Bill is to provide better payment protections to contractors working in WA’s building and construction industry to ensure they get paid on time, every time.
The object of the WA SOP Act is “to provide an effective and fair process for securing payments to persons who undertake to carry out construction work, or to supply related goods and services, in the building and construction industry” (s 3(1)). An express object of the Act (s 3(2)(b)) is to establish an “expedited procedure for making claims for progress payments … and for the adjudication of disputed claims”.
As noted above, the WA SOP Act uniquely provides for an additional layer of review between the original adjudication and court proceedings, that being in the form of an adjudication review of the original adjudication by a senior adjudicator. The adjudication review procedure was intended to be of a “very limited scope” (Explanatory Memorandum, 5).
Section 39 of the WA SOP Act sets out the limited circumstances in which an adjudication review is available. A claimant may apply for review if, among other things, the adjudicated amount is less than the claimed amount and the difference exceeds $200,000. A respondent may apply for review if: the respondent gave the claimant a payment schedule within the time allowed under the WA SOP Act; the respondent gave the adjudicator an adjudication response within the time allowed; and the adjudicated amount is more than the scheduled amount by the minimum amount specified. An adjudication review application must be made within five business days after the date of the initial adjudication determination.
A respondent cannot make an adjudication review application unless the respondent: has paid any part of the adjudicated amount that is not disputed to the claimant; has paid the disputed adjudicated amount into a trust account; and has given written notice of the payment into the trust account to the claimant (see s 40).
An adjudication review application can only be made to certain authorised nominating authorities (see s 42).
Section 42 sets out the requirements relating to adjudication review applications, a number of which are expressed in mandatory terms (using the word “must”), including that an adjudication review application must be made in writing, that it must include copies of certain documents and that it must be accompanied by an application fee. In passing, I note that s 42(1)(d) provides that an adjudication review application may (not must) contain submissions relevant to the application (hence the lack of significance to the present case of the absence of submissions in the Mimecast repository).
Section 42(3) provides that the claimant or respondent making the review application “must” give a copy of the application (and of any accompanying documents) to the other party within one business day after the application is made (cf s 17(5) of the Building and Construction Industry Security of Payment Act 1999 (NSW) () which contains no such timeframe). I note that s 30(2) of the contains a similar one business day requirement in relation to adjudication applications in the first place.
- In this section —
…
give includes serve, send or otherwise provide;
- Any document that by or under this Act is authorised or required to be given by a party to a construction contract to another party to the contract in relation to matters arising under the contract —
(a) must be given in the manner (if any) provided in the contract if it is reasonably practicable to do so; or
(b) in any other case — must be given in a manner provided by subsection (3).
- Any document that by or under this Act is authorised or required to be given to a person may, subject to subsection (2), be given to the person —
(a) by delivering the document to the person personally; or
(b) by leaving the document for the person at the person’s ordinary place of business; or
(c) by sending the document by post to the person’s ordinary place of business; or
(d) by email to an email address specified by the person for giving documents of that kind to the person; or
(e) by any other method (including the use of an electronic database, document system or any other means by which a document can be accessed electronically) authorised by the regulations for giving documents of that kind to the person.
The primary judge addressed the jurisdiction issue from [103]-[112] of her reasons.
Her Honour did not accept that the legislature intended that compliance with s 42(3) was necessary to enliven the review adjudicator’s power ([104]). Accepting that the legislation was designed for speedy resolution of payment claim disputes ([105]), her Honour nevertheless considered it unlikely that it was intended that service one minute late would deprive an adjudicator of jurisdiction.
At [106], her Honour contrasted s 42 with other sections prohibiting an action if there was no compliance, giving as an example s 40(1). Her Honour contrasted this at [107], with the fact that s 42 is headed “Requirements relating to adjudication review application” and prescribes matters “more of form”, saying that it appeared unlikely that such matters of form were preconditions to jurisdiction.
At [108], her Honour addressed a submission by the appellant that the time limit for the giving of an adjudication review application was central to the review process. Her Honour considered that s 45(1) went against a finding that compliance with s 42(3) was a jurisdictional requisite. Her Honour concluded that any delay in serving an adjudication review application did not affect an adjudication review respondent’s ability to respond, given that the respondent has ten business days from the time of receipt of the adjudication review application to submit a response to it. (The appellant here says that, while a delay in service does not impact a review respondent’s ability to respond, it directly impinges on the right to prompt payment.)
Her Honour said at [109] that if service occurred after one day, then it would be for the adjudicator to ensure procedural fairness was given to the recipient party; and said that such an approach was consistent with the authorities. At [100], her Honour said:
The NSW legislation does not include any time requirement for the service of adjudication applications in s 17(5) (unlike other sections, such as s 17(6)). Cases have suggested, but not clearly decided, that service is not a precondition to a valid adjudication, but in some situations, delay or failure to serve may amount to a denial of procedural fairness to the respondent: see eg Douglas Aerospace v Indistri Engineering Albury [2014] NSWSC 1445 at [73]-[75] (McDougall J did not need to decide the “interesting debate” whether s 17(5) was jurisdictional, but doubted it was); Equa Building Services Pty Ltd v KLG Trading Pty Ltd [2021] NSWSC 1674 at [53]-[56] (Stevenson J considered the weight of authority was that s 17(5) was not jurisdictional but did not need to decide) and QC Communications NSW Pty Ltd v CivComm Pty Ltd [2016] NSWSC 1095 at [27]-[29] (Ball J, as his Honour then was, doubted that service was a precondition to jurisdiction).
At [110], her Honour referred to the “clear policy” of the security of payment legislation (for a “pay now, fight later” regime) and considered that framing strict compliance with s 42(3) as a jurisdictional precondition would be antithetical to that purpose “preventing an effective means of resolving the dispute of the parties by way of adjudication review”.
Since the primary judge’s decision, in Martinus Rail Pty Ltd v Co-operative Bulk Handling Ltd [2025] WASC 373 (Martinus Rail), Palmer J in the Supreme Court of Western Australia has expressly recognised that the policy of the WA SOP Act is to ensure expedition in the procedure by which payment claims are resolved by strictly limiting the time for a response to claims under the Act and for the adjudication of disputed claims (see [166]-[168]). Palmer J there rejected the construction argument advanced by the defendant in that case (albeit in relation to a different provision of the WA SOP Act), noting that it would have the potential to undermine the expedited procedure established by the Act and saying that this would not be consistent with the policies of the WA SOP Act ([169]).
Broadly, the parties’ submissions on the jurisdiction issue reflect their position at first instance.
The appellant emphasises that the purpose of the WA SOP Act was to provide a structured and expedited procedure by which payment claims are resolved and submits that the primary judge’s finding that the legislature did not intend that any departure from the one day service timeframe would render the adjudication review application invalid (primary judgment at [105]) is inconsistent with the reasoning in Martinus Rail and gives rise to uncertainty that is antithetical to the effective operation of the WA SOP Act. As to the Martinus Rail decision, the first respondent submits that it shows that the time for the giving of a payment schedule in s 25(1) of the WA SOP Act cannot be extended by agreement (unless the contract in question provides for a shorter period) but says nothing about the matters presently in issue.
The appellant relies in support of its contention that the s 42(3) requirement is a jurisdictional requirement on: use of the imperative language (“must”) in s 42(3) and in other provisions of the WA SOP Act, contrasting this with other provisions that deploy different language (for example, “may” in s 42(1)); other decisions relating to provisions framed in similar terms in other East Coast Model cases (referring to Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd [2019] QSC 91 (Niclin QSC) at [22]; BSA Advanced P**roperty Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd (2022) 108 NSWLR 350; [2022] NSWCA 82 at [35]; Forme Two Pty Ltd v McNab Developments (Qld) Pty Ltd [2025] QSC 96 at [42]; Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liq) (2019) 99 NSWLR 317; [2019] NSWCA 11 at [113]; National Management Group Pty Ltd v Biriel Industries Pty Ltd (t/as Master Steel) [2019] QSC 219 at [83]); and the imposition of tight timeframes in the context of a legislative regime that is “carefully calibrated” to provide “brutally fast” review process. The appellant submits that the service of the review application is essential to the framework of the review application (noting that the adjudication review process and procedural timeframes are tied to the date of service) and submits that this requirement is better understood as an “essential preliminary”, as described in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 (Chase Oyster Bar*)* (at [43] per Spigelman CJ), rather than merely regulating the exercise of the review adjudicator’s functions ( (2021) 273 CLR 506; [2021] HCA 17 () at [174] (Gordon and Steward JJ)).
Whether compliance with the service requirement in s 42(3) is a jurisdictional requirement is a question of statutory construction of the empowering statute (see El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78; (2023) 256 LGERA 24 at [36] per Leeming JA (Gleeson and Adamson JJA agreeing); Anvil Hill Project Watch Assn Inc v Minister for the Environment and Water Resources (2008) 166 FCR 54; [2008] FCAFC 3 at [21], [32]; Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441; [2017] VSC 251 at [43] per John Dixon J) to be approached by reference to the well-known principles of statutory construction (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [93] (Project Blue Sky), and more recently Plaintiff M70/2011 v The Minister for Immigration and Citizenship (2011) 244 CLR 144, 194 [109]; [2011] HCA 32). One has regard to the text, context and purpose of the stature read as a whole.
It is necessary to determine whether the legislature intended that failure to comply with the stipulated requirement would invalidate the act done or whether the validity of the act should be preserved notwithstanding non-compliance with that requirement (Project Blue Sky at [93]).
In the present case, one may have regard to the nature of the requirement in s 42(3), its place in the legislative scheme, the extent and consequences of the failure to observe its requirement (see Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261 at [91] and [93]) and the adverse effects of a finding that the requirement is jurisdictional (see Chase Oyster Bar at [52]).
In my opinion, an analysis of the text, the structure of the legislative scheme and the purpose of the WA SOP Act favours the appellant’s contended construction of s 42(3) as being a jurisdictional requirement.
As to the text, the mandatory language of s 42(3) (compared with the permissive language used in other provisions) is an indication that compliance with the provision is an essential precondition to an adjudicator’s jurisdiction (see Chase Oyster Bar at [39]-[40] per Spigelman CJ) but not determinative (see Miller v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 278 CLR 628; [2024] HCA 13 at [28]-[29]; see also Tasker v Fullwood [1978] 1 NSWLR 20). In Equa Building Services Pty Ltd v KLG Trading Pty Ltd [2021] NSWSC 1674; (2021) 38 BCL 324 (Equa), Stevenson J noted that distinctions between “directory” and “mandatory” requirements had “outlived their usefulness” (at [43]-[44]). More significant, in my opinion, is that the requirement is part of a review process with carefully calibrated timeframes that appear intentionally to have been chosen to set a “brutally fast” SOP regime for speedy determination of payment claims (while preserving the ability for parties to seek curial determination of their disputes at a later date). The legislature in Western Australia was well aware of the East Coast Model (which imposed no such one business day requirement) but chose to impose such a requirement for the unique adjudication review regime in Western Australia.
The primary judge addressed the service issue (the “giving” of a copy of the adjudication review application) from [60]-[88] of the primary judgment. The primary judge considered that the appellant had been “served” for practical and natural justice purposes by, at the latest, 4 December 2024 (referring to cases where a party could not deny service where the party had received and accessed the document (see [63]-[64]), such as Falgat Constructions Pty Limited v Equity Australia Corporation Pty Limited [2006] NSWCA 259; (2006) 23 BCL 292 at [58]).
The primary judge did not accept that the legislature intended the method of service here used (sending an email with an attached email providing a Mimecast link) amounted to “giving” the documents for two reasons: first, that s 113(e) of the WA SOP Act contemplated use of electronic or document database systems but required authorisation by regulation and there was no applicable regulation (primary judgment at [79]); second, that authority in respect of security of payment legislation in other jurisdictions suggested that “giving” of an adjudication review application was not occasioned by sending an email containing a link which, when checked and accessed, revealed the application (referring to Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2015] 1 Qd R 265; [2014] QSC 30 (Basetec) as well as McCarthy v TKM Builders Pty Ltd (2020) 5 QR 722; [2020] QSC 301 (McCarthy) per Martin J at [7] and [23]). Her Honour also referred to Parkview Constructions Pty Ltd v Total Lifestyle Windows Pty Ltd (t/as Total Concept Group) [2017] NSWSC 194 (Parkview) at [75]-[81] where Hammerschlag J, as his Honour then was, concluded that delivery of a USB stick was not service of a copy in writing for the purpose of s 17(7) of the NSW SOP Act.
The primary judge concluded at [88] that the first respondent did not give the documents “by email” as contemplated by s 113(3)(d), because the Adjudication Review Application was not immediately accessible without the appellant’s additional action.
Again, broadly, the first respondent’s position on the service issue reflects its position at first instance. The appellant, while endorsing the primary judge’s reasoning, proffers two additional reasons in support of her Honour’s conclusion on this issue. Those two additional reasons are: first, the appellant’s contention that the Adjudication Review Application was not served in accordance with the contract as required by s 113(a) of the WA SOP Act and, second, that even if the contract did not specify a means for service, the review application was not otherwise given in a manner provided for by s 113(3) of the WA SOP Act.
As to the first of those additional reasons, the appellant argues that the use of the mandatory “must” in ss 113(2) and (3) provides a rigid and precise mechanism for the “giving” of documents under the WA SOP Act. The appellant says that her Honour was incorrect in finding that the contract between the parties did not specify the manner of service and that the first respondent’s failure to serve the review application in accordance with the contract was in breach of s 113(2)(a). The appellant argues that cl 7.1 (extracted at [8] above), specifies the manner of service (i.e., by post or delivery or by email in the form of a letter attachment). (The first respondent points out that at the hearing before the primary judge, the appellant submitted that: the building contract “prescribed several methods of service”; the first respondent did not comply with those methods; and therefore “s 113(2) of the SOP Act was not complied with by [the first respondent]”.)
As to the second additional reason, the appellant submits that if, contrary to the above submission, the contract did not specify a means of service, the primary judge was correct to find that the first respondent failed to serve the review application in accordance with s 113(2)(b) (i.e., in a manner provided in s 113(3)).
As to whether the words “manner” of giving a document (that by or under the WA SOP Act is authorised or required to be given) “provided” in a contract (in s 113(2)(a)) means a manner permitted by the contract or a manner mandated by the contract, the first respondent accepts that, without context, those words are capable of either meaning but it submits that it would be a strange result if s 113(2)(a) had the result that a facilitative contractual provision, precluded other modes of service. (I agree.)
As to whether the Adjudication Review Application fell within the words in cl 7.1 of the contract, “[a] notice (and other communications given under the Contract documents)”, the first respondent submits: first, that the fact that the contract deals with the making of payment claims (and so cl 7.1 applies to such documents) suggests that the parties considered that cl 7.1 should apply to some, but not all, WA SOP Act documents; and, second, that the giving of the adjudication review application was not something that was obliged, permitted, governed or controlled by the contract (rather, the adjudication review application was a creature of the alone). Hence, the first respondent submits that it should be found that the Adjudication Review Application was not given “under” the contract, and so cl 7.1 did not apply to the giving of the adjudication review application.
I address first the contention that cl 7.1 of the contract “provided” for the manner of service for the purposes of s 113(2)(a) of the WA SOP Act, such that failure to post or deliver the relevant documents or send them by email as a letter attachment, was a breach of cl 7.1 (and hence not valid service under s 113(2)).
In my opinion, cl 7.1 of the contract does not assist the appellant. As the first respondent notes, it is, in terms, a deeming (i.e., facilitative) provision. The parties’ contract does not provide for service to be effected or documents given or otherwise provided in any particular manner in the sense of requiring that to be done. Rather, cl 7.1 deems a notice or communication “given under the contract documents” to have been given and received if sent in accordance with that clause. Clause 7.2 then deems the date on which such service has occurred. Ordinarily, a facilitative provision of this kind does not preclude other modes of service (as the primary judge held at [70]-[72]).
The primary judge also held that cl 7 concerned contractual notices (“under the contract”) and was silent on how notices under the WA SOP Act were to be given (primary judgment at [71], [72]), this being another reason why her Honour considered that s 113(2)(b), not s 113(2)(a), governed the service issue (primary judgment at [72]).
In my opinion, the Adjudication Review Application documents were not documents “given under the contract documents”. I accept that the word “under” takes its meaning from the context in which it occurs (see Chief Commissioner of State Revenue (NSW) v Uber Australia Pty Ltd (2025) 118 NSWLR 164; [2025] NSWCA 172 (Uber) at [83]), but I do not accept that her Honour erred in not finding that the Adjudication Review Application documents were notices or documents given “under” the parties’ contract. The contract did not oblige or permit the making (and if so, the giving of the documents within the timeframe specified) of the adjudication review application, nor did it govern or control its existence (see Inghams Enterprises Pty Ltd v Hannigan [2020] NSWCA 82; (2020) 379 ALR 196 at [137]).
On the wording of the chapeau to s 113(2), an adjudication review application is a document that by or under the WA SOP Act, is required to be given by a party to a construction contract (i.e., the applicant for the review) to another party to the contract and it relates to matters arising under the contract (adjudication and review thereof in relation to payment claims). It is not a notice or other communication “given under the contract documents”. Ultimately, however, it is not necessary to reach a concluded view on this because I read cl 7.1 as facilitative not prescriptive and I read the reference in s 113(2)(a) “in the manner … provided in the contract”, as meaning a manner specified or required under the contract.
For the above reasons, I would dismiss the appeal with costs.
McHUGH JA: I have had the benefit of reading in draft the President’s reasons and those of Free JA.
As to the issues arising on the notice of appeal, and gratefully adopting the terms used by the President, I agree with her Honour’s reasons for concluding that the requirement in s 42(3) of the WA SOP Act is jurisdictional, and that the primary judge erred in this respect.
As to the issues arising on the notice of contention, I also agree with her Honour’s reasons for concluding that the words “in the manner … provided in the contract” in s 113(2)(a) refer to a manner required by the contract; that cl 7.1 is facilitative not prescriptive; and that the adjudication review application documents were in any event not documents “given under the Contract documents” within the meaning of cl 7.1
However, I respectfully disagree with her Honour’s conclusion that the adjudication review application documents were “otherwise provide[d]” “by email to an email address specified by the person for giving documents of that kind to the person” within the meaning of s 113(1) and (3)(d) of the WA SOP Act. For the reasons given by Free JA, I consider that the primary judge was correct to conclude that the first respondent did not, in the relevant statutory sense, “give” a copy of the review application and accompanying documents to the appellant by 3 December 2024. Accordingly, I would dismiss the notice of contention and allow the appeal.
I agree with the orders proposed by Free JA.
FREE JA: I have had the considerable advantage of reading in draft the reasons of the President. I agree with her Honour in relation to the notice of appeal, including the conclusion that a failure to comply with the requirements for service under s 42 of the WA SOP Act has the consequence that the review adjudicator lacks jurisdiction to determine the review application.
I respectfully disagree with the conclusion that the President has reached in relation to the notice of contention. I would dismiss the notice of contention, on the basis that the first respondent did not, in the relevant statutory sense, “give” a copy of the review application (and accompanying documents) by 3 December 2024. The primary judge was correct to so conclude. As I agree with the President’s conclusion that, contrary to her Honour’s findings, non-compliance with s 42(3) deprived the review adjudicator of jurisdiction, I would allow the appeal.
In light of the explanation of the background in the reasons of the President, which I gratefully adopt, it is convenient to turn almost immediately to the question of construction arising from the notice of contention. It is sufficient to reiterate that, as explained by the President at [16], the only purported mode of giving of documents that occurred within one day of the review application being made was the sending of the 2 December Email. Attached to the 2 December Email was an email which contained an electronic link to files held in the Mimecast repository. In order for the recipient of the 2 December Email to obtain the documents comprising the Adjudication Review Application, it was necessary to click on the link in the attached email, which would then facilitate the documents being downloaded from Mimecast. Only then would the documents come into the possession and control of the intended recipient.
The question posed by the notice of contention is whether this constitutes “giving” a copy of the application (and of any accompanying documents) to the other party, for the purposes of s 42(3) of the WA SOP Act. The answer to that question turns on the proper construction of s 113 of the WA SOP Act.
Section 113 is the governing provision where a document is, by or under the Act, authorised or required to be “given” by a party to a construction contract to another party to the contract in relation to matters arising under the contract: s 113(2). It is common ground that the section is enlivened when s 42(3) applies. That is because s 42(3) imposes a requirement, under the Act, that certain documents be given by a party to a construction contract to another party to the contract in relation to matters arising under the contract (being the review of an adjudication as to entitlements to progress payment claims under the contract).
Pausing there, it is relevant to note that the analysis to this point does not depend upon the expanded meaning of “give” within s 113 itself, flowing from s 113(1). Section 42(3) in terms requires an applicant for a review adjudication to “give” a document to the other party. That is, obviously enough, a circumstance in which a document is required by the Act to be “given” to that other party.
Where s 113 is enlivened, as it is when s 42(3) applies, two possibilities arise. The first, governed by s 113(2)(a), is that the document in question must be “given” in “the manner (if any) provided in the contract if it is reasonably practicable to do so”. That stipulation will apply only if the contract in question does in fact provide for the manner in which such documents are to be given. In light of the expanded meaning of “give” within s 113, that will be the case if the contract in question provides for the manner in which documents are to be given, served, sent or otherwise provided.
I agree with the President that the contract in the present matter does not, for the purposes of s 113(2)(a), provide for the manner in which the review application (and any accompanying documents) were to be given to the other party. I agree with her Honour’s reasons for reaching that conclusion.
The notice of contention should therefore be rejected. I would make the following orders:
Appeal allowed.
Set aside orders 1, 2 and 4 made by the primary judge on 29 May 2025 and in lieu thereof order:
(a) Prayers 15 to 18 of the final relief sought in the amended summons be dismissed. (b) The plaintiff is to pay the first defendant’s costs in respect of the questions determined by the Court in Tackelly No 8 Pty Ltd atf Tackelly No 8 Trust v Reward Interiors Pty Ltd t/as Reward Group [2025] NSWSC 300.
**********
Order 2 on the coversheet amended.
Order 3 added.
Reward Interiors Pty Ltd t/s Reward Group
Tackelly No 8 Pty Ltd atf Tackelly No 8 Trust
(2008) 166 FCR 54
(2005) 63 NSWLR 557
(2022) 108 NSWLR 350
(2023) 112 NSWLR 225
(2017) 52 VR 441
(2010) 78 NSWLR 393
(2025) 118 NSWLR 164
(2023) 256 LGERA 24
(2024) 115 NSWLR 56
(1979) 41 FLR 277
(2020) 379 ALR 196
(2004) 218 CLR 216
(2024) 278 CLR 628
(2021) 273 CLR 506
(2001) 107 FCR 60
(2011) 244 CLR 144
(2018) 264 CLR 1
(1998) 194 CLR 355
(2019) 99 NSWLR 317
Appeal allowed. Orders 1, 2 and 4 made by the primary judge on 29 May 2025 were set aside. Prayers 15 to 18 of the amended summons were dismissed, Tackelly was ordered to pay costs relating to the questions determined in the primary proceedings, remaining issues were remitted to the primary judge, and Tackelly was ordered to pay Reward’s appeal costs. McHugh JA and Free JA formed the majority on the service issue; Ward P dissented on that issue and on the consequential orders.
The attachment to the 2 December Email appears to have been an email with the subject header “You’ve been sent large files” containing a link to download the files (held in the Mimecast repository), which included two letters of service by pdf and a large zip file containing the Adjudication Review Application (see the affidavit sworn 3 March 2025 by Mr Donohue at [21]; affidavit sworn 3 March 2025 of Mr Lee, an associate director of Reward, at [21]).
An expert report filed by the first respondent in the proceedings before her Honour explained the process of sending documents via email and Mimecast and the ability to retrieve those documents (see affidavit affirmed 21 February 2025 by Dr Peter Chapman, a digital forensic consultant, and his report dated 21 February 2025 which was annexed thereto). In simple terms, the process of accessing the Adjudication Review Application involved accessing the email attachment containing the Mimecast link and then clicking on that link to download the files.
Pausing here, it is not disputed that the documents contained in the “Mimecast” repository did not include any submissions. In that regard, the first respondent says that, although it prepared submissions for the review application, by error they were omitted from the review application as lodged and as given to the appellant (see the reference to this in the Review Adjudicator’s Determination at [25]-[28]; [73]). However, nothing turns on this. The lack of submissions in the Mimecast repository was not relied upon by the appellant at the hearing before her Honour as a basis for resisting the first respondent’s case on jurisdictional error nor is it raised by the appellant in this appeal as a basis for resisting the notice of contention and, as will be explained in due course, it was not a mandatory requirement that an adjudication review application be accompanied by submissions.
As to the accessibility of the documents so forwarded to the appellant, the parties admitted that the Adjudication Review Application could be immediately accessed and downloaded from that Mimecast repository on the date the 2 December Email was sent (see [24] of the Technology and Construction List Statement; admitted at [24] of the Technology and Construction List Response).
Indeed, Mr Donohue read the 2 December Email within about ten minutes of receiving it, using his work mobile phone as he was at the time on medical leave and not attending the office (see his affidavit at [14]). However, Mr Donohue deposed that he was aware, from prior experience of using his work mobile phone, that he was unable to open file attachments or download files from file sharing sites from that phone and that he did not at that time try to open the attachment nor did he see or click on any link within the attachment (see his affidavit at [15]). Mr Donohue forwarded the email to the appellant’s solicitors, copied to Mr Lee (an associate of his), about six minutes after receiving it (see his affidavit at [16]). For similar reasons to those of Mr Donohue, Mr Lee did not attempt to open the email or attachment from his work mobile phone when it was copied to him. Mr Lee deposed that he only opened it after Mr Donohue asked him on 4 December 2024 to do so, and to download the material to confirm that no submissions were included.
Mr Donohue did not open the Mimecast link until about 9.52 am AEST on 4 December 2024, when he returned to work after his medical leave and downloaded the material in the link (see his affidavit at [21]-[24]). I note that there was no suggestion pressed at first instance that the appellant had attempted to avoid service of the Adjudication Review Application.
On 16 December 2024 (ten business days after 2 December 2024), the appellant provided its Adjudication Review Response, in which it alleged that the review adjudicator lacked jurisdiction as the Adjudication Review Application had not been given to the appellant within one business day after the application had been made (see primary judgment at [10]).
On 13 January 2025, the review adjudicator (the fifth respondent) found that he lacked jurisdiction as s 42(3) of the WA SOP Act was a jurisdictional precondition and had not been complied with (the Review Determination) (primary judgment at [11]).
On 16 January 2025, the first respondent commenced proceedings in the NSW Supreme Court to set aside both the Adjudication Determination and the Review Determination. As to the commencement of the proceedings in this jurisdiction, I note that both the first respondent and the appellant are based in New South Wales with registered offices in Sydney. The appellant points out that the New South Wales Supreme Court had jurisdiction to determine the dispute by reason of s 9 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) and s 4(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA). There was no application for the proceedings to be transferred to Western Australia.
On 11 April 2025, the primary judge handed down her reasons for judgment (considered in more detail in due course) and, on 29 May 2025, the primary judge made orders in effect quashing the Review Determination and declaring it invalid.
The procedure for the determination of any adjudication review application is structured by reference to a number of timeframes linked to the time at which an adjudication review application is made (as explained below). In this regard, much weight is placed by the appellant on the carefully calibrated timeline for which the Act makes provision.
Pursuant to s 44(2), a review adjudicator must be appointed in accordance with s 44 within five business days after an adjudication review application is made. If that does not occur, then the application is taken to be withdrawn and the claimant or respondent may make another adjudication review application within five business days after the withdrawal despite the expiry of the time otherwise allowed for making adjudication review applications.
Pursuant to s 45, the other party to the adjudication review application may give the review adjudicator a response within ten business days after receiving a copy of the adjudication review application. The response must be in writing and identify the application to which it relates; and may contain submissions relevant to the response. The party giving the adjudication response must give a copy of the response to the other party to the adjudication review within one business day after the response is given to the review adjudicator (s 45(4)).
The adjudication review procedures are set out at s 46. Those include that the review adjudicator may consider only the matters set out at s 46(1) (which include the relevant adjudication review application and adjudication review response “if any”, together with submissions (including accompanying documents) “duly made” (s 46(1))) and must not consider, among other matters, an adjudication review response given after the time allowed for by Division 3 of the Act.
Pursuant to s 47, the review adjudicator must not determine the adjudication review application until after the adjudication review response is given or, if not given, until after the last date on which the response could have been given. As noted above, an adjudication review response may be given within ten business days after receiving a copy of the adjudication review application. Therefore, assuming compliance with s 42(3) (i.e., a copy of the application is given to the other party on the same day as, or at the latest, one business day after, the application is made), the response timeframe is ten or 11 business days after the adjudication review application is made.
Pursuant to s 47(2), the review adjudicator must determine an adjudication review application within ten business days after: the date on which the adjudicator review report is given (if given within the time allowed) or the last date on which the response could have been given.
Hence, the outer limit for the making of a determination by the review adjudicator (unless, which is not here relevant, extended by agreement between the parties pursuant to s 47(3)) is 21 business days from the date of the making of the application (assuming that a copy of the application is served one business day after the application is made). It follows that if the one business day timeframe is not a jurisdictional pre-condition to the power of the review adjudicator to determine the application, then there will be uncertainty as to when the time allowed for the determination of the adjudication review application will expire.
Section 47(4) provides that a review adjudicator’s determination is not invalid merely because it is made after the time allowed by s 47 for determining the adjudication review application. Rather, if the review adjudicator fails to determine an application within the time allowed, the party who made the application may withdraw it and make another review application within five business days after the withdrawal. Again, uncertainty will be introduced in relation to this timeframe if the one day business requirement for giving a copy of the adjudication review application is not jurisdictional.
Relevantly, as to the service issue in the present case, s 113 of the WA SOP Act provides that:
As to the uncertainty that the appellant submits arises from the primary judge’s decision (as to what is a sufficient or reasonable time to serve an adjudication review application), the appellant argues that this promotes idiosyncratic approaches by adjudicators and invites more litigation and delay in payment to subcontractors, contrary to Parliament’s intention. (The first respondent argues that the inverse is the case, in terms of likely litigation and points out that there was no uncertainty in the present case.)
Further, the appellant argues that significant practical consequences could arise from the approach taken by the primary judge, postulating by way of example, that the review process could be used as a means of asserting commercial pressure on subcontractors (by lodging an adjudication review application and then delaying service of it for a number of days). The first respondent submits that the appellant’s example is improbable and in effect counters this by submitting that a construction that requires absolute compliance with s 42(3) (or s 30(2)) would reward conduct on the part of proposed recipients of documentation that results in them not being “given” the documents within one business day.
The first respondent does not appear to cavil with the purpose of the legislation as identified by the appellant but emphasises the judicial restraint shown in the context of the NSW SOP Act “in implying essential preconditions to the engagement of statutory powers, which would invite judicial intervention” (see EnerMech Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd (2024) 115 NSWLR 56; [2024] NSWCA 162 at [9]) and submits that there is no reason to take a different approach when dealing with the WA SOP Act.
The first respondent argues that it is not necessary, to further the WA SOP Act’s purpose of providing for “an effective and fair process” of securing progress payments, for the requirement under s 42(3) to be a jurisdictional requirement (pointing to the fact that there is no time limit in the NSW SOP Act equivalent of s 30(2) (NSW SOP Act, s 17(5))). Rather, the first respondent submits that a construction that requires absolute compliance with s 42(3) (or, for that matter, s 30(2)) is likely to undermine the purpose of the Act (speedy determination of claims) by exposing determinations to increased judicial scrutiny. In this regard, the first respondent invokes what was said in Builtcom Constructions Pty Ltd v VSD Investments Pty Ltd as trustee for The VSD Investments Trust (No 2) [2025] NSWCA 134 at [65], namely that “to the extent to which a determination is susceptible to challenge for jurisdictional error, the purpose of speedy interim determination of claims will be undercut”; and points to a key reason for including the review mechanism having been to provide “an alternative remedy to be exhausted away from curial proceedings” (referring to the Explanatory Memorandum).
The first respondent points to the circumstances of the present case, namely that: on the primary judge’s finding as to the giving of the documents, the first respondent was less than seven hours late (as the documents were accessed by the appellant prior to 7 am WST on 4 December 2024) (referring to the primary judgment at [61]-[62]); as a practical matter, the documents were just as available to the appellant as they would have been if the first respondent had sent them as attachments by email; the appellant knew, on 2 December 2024, that an adjudication review application had been made; and no prejudice was caused to the appellant’s ability to respond to the adjudication review application.
The first respondent argues that the narrower the reading of s 113, the more difficult strict compliance with s 42(3) may be; yet the appellant’s approach would have the result that being even one minute late in compliance with s 42(3) would deny jurisdiction to a review adjudicator. The first respondent says that the appellant’s approach has both the tendency to hamper the ability of parties to avail themselves of the adjudication review mechanism and the ability of claimants to pursue adjudications of payment claims, neither of which is consistent with the purpose of the WA SOP Act.
I accept that, given the similarity in language and equivalent role they play in review applications and adjudication applications respectively, one would expect that s 42(3) and s 30(2) of the WA SOP Act should be construed consistently. However, this does not compel the construction of s 42(3) for which the first respondent contends (and which her Honour adopted).
Accepting that the purpose of the legislation is that identified in Martinus Rail*,* in my opinion, the construction advanced by the first respondent (and accepted by her Honour) does have the potential to undermine the expedited procedure established by the WA SOP Act because it would defer the start of the relevant timeframe set out in other provisions of the Act, such as s 45(1) of the Act, and creates uncertainty as to the review process.
The deliberate inclusion of a one day time limit (that is notably absent from the East Coast Model), to my mind indicates Parliament’s intention for expedition of the review process. I do not accept that it could not have been Parliament’s intention that the giving of the documents one minute late would invalidate the review process. It is true that the effect of the appellant’s construction would lead to the result that, where an application notice is served late by however short a period, no adjudication review could take place. That may in one sense prolong the payment dispute and be contrary to the purpose of the legislation for expedited resolution of disputes. However, in another sense, that delay simply removes one layer of adjudication and permits more speedy determination of the payment claims. I consider that the specification of a one day time limit in the context of the SOP regime here legislated for is a persuasive indicator that s 42(3) is a jurisdictional requirement.
As to the structure of the legislative scheme, as counsel for the appellant submits, the service requirement in s 42(3) is concurrent with making an application (“it is the hinge on which the next timeframe in the review process turns and the next time frame if it’s a review process turns” – 16/02/26; T 5.30). The timeframe in s 45(1) is “hinged” upon the respondent or the claimant giving a response to the adjudication review application within ten business days after receiving a copy of the adjudication review application. Thus, s 42(3) is an essential precondition to taking subsequent steps in the procedures set out in the WA SOP Act (rather than being a statutory condition that merely regulates the exercise of the arbitrator’s functions – see MZAPC at [174] (Gordon and Steward JJ)).
Insofar as the appellant has referred to Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd (2019) 2 QR 190; [2019] QCA 177 (Niclin QCA) (an appeal from Niclin QSC), I accept that on appeal in Niclin QCA, the issue focused on whether the requirement was for service “as soon as possible” and, if so, whether that had occurred (there being no challenge to the finding at first instance that compliance with the service requirements in the legislation there under consideration was a jurisdictional requirement – see Niclin QCA at [15], [45]) and hence Niclin QCA does not express a view as to whether Ryan J in Niclin QSC was correct in proceeding on the basis that the service requirement was a jurisdictional requirement. That said, I have reached my conclusion as to the jurisdiction issue without needing to rely on those cases.
Further, as the appellant submits, the cases on which her Honour relied that considered s 17(5) of the NSW SOP Act (such as Equa, on which the first respondent here relies) did not concern a timing issue as such but were concerned with the provision of copies of payment schedules, unaffected by the extra words in s 42(3) of being within one business day (16/02/26; T 14.29). Again, the insertion of a mandatory obligation on parties applying for a review application to comply with a one day time limit points here in favour of the appellant’s contended construction.
Accordingly, I have concluded that the requirement in s 42(3) is a jurisdictional requirement and the appellant’s challenge to her Honour’s finding to the contrary is made good.
For the reasons set out in the determination section below, I do not accept either of the appellant’s propositions in relation to s 113(2)(a) or (b).
As to the argument raised by the first respondent on its notice of contention, the first respondent’s position is that, when s 113(3)(d) is read with the definition of “give” in s 113(1), s 113(3)(d) has the effect that a document may be given to a person if it is given, served, sent or “otherwise provided” to the person by email to an email address. The first respondent refers to Demex Pty Ltd v John Holland Pty Ltd (2022) 12 QR 438; [2022] QSC 259 at [69]-[70], where it was accepted that an email that attaches a document is an email by which the sender “gives” the document in question. Thus, the first respondent submits that sending by email, a link from which documents can be immediately accessed and downloaded (as to which it emphasises the appellant’s admission as to accessibility), constitutes the “giving” of those documents by email within the meaning of s 113(3).
Insofar as the primary judge’s finding to the contrary was based on the fact that the 2 December Email did not attach the Adjudication Review Application but included only the Mimecast link to the material (or, more precisely, attached another email that itself contained the link), the first respondent submits that this distinction was not required by the legislative scheme and does not advance the purpose of the WA SOP Act. The first respondent argues that an available construction which facilitates the giving of large volumes of documentation of the kind not uncommonly found in security of payment applications is to be preferred.
In this regard, the first respondent argues that, as a matter of practicality, there is no reason for distinguishing between an email that includes an attachment and one that includes a link, referring to Sharvain Facades Pty Ltd (Administrators Appointed) v Roberts Co (NSW) Pty Ltd [2025] NSWSC 606 (Sharvain NSWSC), where Stevenson J accepted that a progress claim sent to an email address through a system called “Payapps” was a means of service permitted by s 31(1)(d) of the NSW SOP Act (at [31]-[32]). The first respondent points out that, on appeal, Hammerschlag CJ in Eq (with whom Griffiths AJA agreed) noted that the claim was sent and was capable of being retrieved on the relevant date and accordingly the document was given, sent or otherwise provided and therefore served at that time within the plain English meaning of the words of s 31(4) (see Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed) [2025] NSWCA 161 (Sharvain NSWCA) at [36]).
The first respondent argues that, assuming that the link in the email is functional, there is little practical difference between clicking on that link or clicking on the attachment that was apparently attached to the email.
As to the practicalities of sending large volumes of documents, the first respondent emphasises that in the present case, the volume of material was such that the review application occupied an 856.1 megabyte zip file (Dr Chapman’s report at [2.2.3]) (the first respondent referring in this context to Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215 (at [65]) and Martinus Rail v Qube).
The first respondent submits that, without the use of a link such as a Mimecast link, the mode of service in s 113(3)(d) is highly impractical or even impossible where there are large payment claims, noting that attachments to emails are commonly subject to size limitations (see Dr Chapman’s report at [3.3.3]); and that a recipient email system might start rejecting emails either due to it being full, or on the basis that so many emails in a short period from one sender points to something untoward. The first respondent says that, given the number of emails it would have had to send in order to attach 856 megabytes of data, the link that it gave the appellant was more practical; it avoided the appellant having to open some 37 to 86 emails and their attachments.
The first respondent argues that the concept of “providing” something “can refer to conduct which does not involve the intended recipient of a thing actually receiving it” (citing Nair v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 60 at 69; [2021] FCA 249) and it submits that, in the context of s 113 of the WA SOP Act, the words “otherwise provide” must mean something aside from giving, serving or sending. The first respondent says that, under the WA SOP Act, the sending of an email with an attachment to an address of the type specified in s 113(3)(d) is treated as the “giving” of the attachment and argues that there is no good reason to treat any differently other conduct which has the same practical effect (i.e., the sending of an email with a link through which documents are immediately accessible and downloadable). The first respondent contends that such conduct may be regarded as “otherwise providing” the documents in question by email.
The first respondent submits that this approach is consistent with authority regarding the construction of s 31 of the NSW SOP Act, noting that attempts to construe that section “in a restrictive way have generally been rejected” (citing Claire Rewais and Osama Rewais t/as McVitty Grove v BPB Earthmoving Pty Ltd [2025] NSWCA 103 (Rewais) at [130]). The first respondent argues that its approach avoids the problem of the time of receipt of documents being determined by the timing of action taken by the recipient, with the obvious potential for undue delay that would arise (cf Rewais at [130]) in cases where functional links are sent by email to an appropriate email address and that this approach operates to facilitate compliance with the requirement to serve adjudication applications, as well as review applications; and is consistent with the security for payment regime being “‘intended to provide a speedy way to resolve, on an interim basis, disputes concerning construction contracts’ in a manner that, so far as possible, ‘avoids arid and technical disputes’” (Rewais at [130]). The first respondent submits that, as its construction of s 113(3) “produces the fairer and more convenient operation” of the provision, it should be preferred (citing Federal Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 41 FLR 277 at 321; [1979] FCA 45).
As to the first reason given by the primary judge in relation to the definition of “giving”, the first respondent argues that s 113(3)(e) did not provide a basis to construe s 113(3)(d) narrowly. The first respondent says that s 113(3)(e) is not directed to the use of emails and should not be read as affecting the concept of “otherwise providing” a document by email. The first respondent accepts that regulations cannot be used to interpret the WA SOP Act but says that the Building and Construction Industry (Security of Payment) Regulations 2022 (WA), reg 22, provides a good example of work that s 113(3)(e) can do when s 113(3)(d) is read in the way the first respondent contends (noting that it provides that a document is uploaded into an electronic “lock-box” controlled by the authority “when the document is capable of being retrieved from the lock-box by the authorised nominating authority” (reg 22(4)), without any requirement for the use of email).
As to the second reason given by the primary judge, the first respondent argues that reliance on Basetec, McCarthy and Parkview was misplaced (for reasons I consider below.)
As to those contentions, the appellant submits that the primary judge was correct in finding that the first respondent failed to “give” the documents by email as contemplated by s 113(3)(d), as the Adjudication Review Application was not immediately accessible without additional action by the appellant. The appellant says that s 113(3) is designed to operate in circumstances where the parties themselves have not chosen to specify how service is to occur and that it provides the permitted means of service.
The appellant maintains that s 113(3)(e) of the WA SOP Act demonstrates that the Western Australian legislature contemplated that links to an electronic database system may be a suitable way for a party to “give” a document but that it limited service in this way to those electronic databases authorised by regulation. The appellant says that the fact that the SOP Regulations do not provide for service through private online databases maintained by private parties, supports a conclusion that the use of a “Mimecast” link is inconsistent with the “giving” (i.e., service) of an adjudication review application as required by the WA SOP Act.
The appellant argues that there are a number of practical consequences that support a finding of strict compliance with s 113(3), pointing to Dr Chapman’s report which notes that there are material practical differences between documents attached to emails and documents stored at a location accessible through a Mimecast link. The appellant says that email attachments physically “travel” with the email and are physically stored on the recipient’s server (and hence attachments are physically “given” with the email). In contrast, the appellant says that all a Mimecast link provides is an invitation to access a document that has actually never been “given” to the recipient but instead remains stored on a server controlled by the sender. The appellant says that this gives rise to practical consequences such as access limitations that require the recipient to sign-up or register or be pre-authorised to access the server in a way that may delay or limit who has access to time sensitive documents. Furthermore, the appellant says that the use of online document repositories creates an “asymmetry of control” as to when documents were uploaded, whether uploaded documents are modified and how such metadata is tracked.
The appellant argues that the Western Australian legislature turned its mind to this issue and sought to limit and regulate the circumstances in which electronic databases can be used pursuant to s 113(3)(e) (pointing to the Explanatory Memorandum for the Bill, which described *“*specific rules with respect to the service of any document that is authorised or required to be given under the [Act]” (at 33)). The appellant argues that the WA SOP Act is concerned about more than just whether a document has been received but, instead, “whether the review application has been given in a specified structured way to ensure with objective confidence that the document was in fact given” (at [34] of its submissions in reply).
Insofar as the first respondent points to the voluminous nature of adjudication review applications, the appellant notes that s 113(2)(a) of the WA SOP Act expressly allows parties involved in complex and large-scale construction projects to provide for a specific method of service in their contracts.
The appellant submits that the primary judge correctly adopted the distinction in the existing authorities between circumstances where a review application is included in the text of an email or the body of a document attached to that email and where an email contains a link that the recipient can then use to access the electronic application. Insofar as the first respondent places reliance on Sharvain NSWSC, the appellant says that Sharvain concerned a deeming clause in a construction contract that sought to circumvent the effect of the ten day requirement under s 14 of the NSW SOP Act to serve a payment schedule and that the Court was primarily dealing with the effect of the deeming clause, rather than the effect of the service provisions in the NSW SOP Act. Moreover, the appellant says that Sharvain NSWSC can be distinguished on its facts because it involved the use of a contractually agreed “Payapps” database system that the parties had used for the purpose of all payment claims. The appellant says that such an approach would be entirely consistent with its reading of s 113(2)(a) of the WA SOP Act which allows parties contractually to agree to the use of an online repository. (The first respondent accepts that Sharvain NSWSC is not directly on point but says that it illustrates the lack of merit in distinguishing between an attachment to an email and an email that includes a functional link to an online repository.)
An interesting issue would arise as to whether, if s 113(2)(a) did require the adjudication review application to be given in the manner permitted by cl 7.1 of the contract, this was “reasonably practicable” (having regard to Dr Chapman’s report which strongly suggests that it was not in the present case), but that point was not argued and need not be determined. My point is that, even had cl 7.1 been other than merely facilitative, it would not have assisted the appellant in resisting the notice of contention argument.
Accordingly, the first additional reason proffered by the appellant does not persuade me that the primary judge erred in concluding that cl 7.1 of the contract did not apply. As to the second reason, s 113(3) relevantly provides that any document that by or under the WA SOP Act, is authorised or required to be given to a party to a construction contract, must be given by any of the methods in s 113(3)(a)-(e). Section 113(3)(d) is “by email to an email address specified by the person for giving documents of that kind to the person”. This is the provision on which the first respondent relies. Therefore, if the first respondent is correct in its contention as to s 113(3)(d), the second additional reason proffered by the appellant does not arise.
The question here raised is whether s 113(3)(d), when read with the definition of “give” in s 113(1), is satisfied by emailing a link to a repository from which documents may be immediately accessed and downloaded. I consider that the SOP Regulations do not assist in answering that question. Section 113(3)(e) allows for regulations to be made that authorise the giving of documents by any method not already addressed in s 113(3)(a)-(d). There is no need to construe s 113(3)(d) narrowly on account of s 113(3)(e). Hence, I do not accept the first reason put forward by the primary judge for the finding on the service issue.
I accept the first respondent’s submission that, when s 113(3)(d) is read with the definition of “give” in s 113(1), s 113(3)(d) has the effect that a document may be given to a person if it is given, served, sent or “otherwise provided” to the person by email to an email address.
As to the second reason that the primary judge gave for the finding on the service issue, in my opinion, for the reasons put forward by the first respondent, the authorities to which her Honour referred do not compel the conclusion that her Honour reached.
In Basetec, McMurdo J was considering whether the sending of a “Dropbox link” satisfied s 11 of the Electronic Transactions Act 2001 (Qld) and held that it did not (at [28]-[29]). The relevant Queensland legislation did not provide a definition of “give” (or serve or send) that included the phrase “otherwise provide”. Both Basetec and McCarthy say nothing relevant to the construction of s 113(3)(d).
As to Parkview, as the first respondent points out, it did not involve a link to an online repository. In obiter dicta, Hammerschlag J, as his Honour then was, considered whether “delivery alone of a USB stick” constituted service of something in writing for the purpose of s 17(5) of the NSW SOP Act (at [73]) and referred to the definition of “writing” in Sch 4 – Dictionary of the Interpretation Act 19**87 (NSW). His Honour held that delivery of a USB stick was “not to be equated with service of writing stored on it” (at [75]). As the first respondent notes, at the time of Parkview, s 31 of the then NSW SOP Act did not include s 31(4) (which contains a definition of “serve”, similar to the expanded definition of “give” in s 113(1) of the WA SOP Act), which was introduced in 2018.
In Parkview, Hammerschlag J said that “[a]bsent some relevant statutory expansion or limitation of the notion ... a document will, in the ordinary meaning of the word, be served if the efforts of the person who is required to serve it have resulted in the person to be served becoming aware of the contents of the document” (at [76], referring to Basetec). The first respondent says (and I agree) that, at least because s 31(4) was not part of the NSW SOP Act at the time, Parkview says nothing about the construction of s 113(3)(d) for which it contends.
The primary judge at [87], drew a distinction between an email that includes text in its body or in the body of an attachment, and one that contained a link providing access to the relevant documents. In so doing, I consider that her Honour erred in applying the authorities referred to above and in not dealing with the meaning to be given to the words “otherwise provided” in the context of s 113(3)(d), as they did not inform the correct construction of s 113(3)(d).
The Adjudication Review Application was “otherwise provided” (if not given or sent within the ordinary meaning of those words). The fact that one had to click on another email and then on the link to the Mimecast repository, does not mean that it was not “provided” to the recipient of the email. The concept of something physically travelling with an attachment is not found in the legislation and I do not agree that the “asymmetry of control” to which the appellant refers, affects the conclusion that the documents in the Mimecast repository were “provided” when the link to that repository was sent to and received by the appellant. Once accessed and downloaded, the appellant had the documents in its possession. If the concern was that there could be an attempt to modify the documents after they had been accessed, a party who had accessed them would have proof of the form in which they were at the relevant time.
I note that the first respondent emphasises that, in the present case, there were no “access limitations” of the type to which the appellant has referred in its submissions (at [33]) and that the first respondent again points to the admission by the appellant by its List Response, that the 2 December Email “contained a link to a ‘Mimecast’ repository, from which the Review Application could be immediately accessed and downloaded”. The first respondent accepts that disputes might arise as to which documents were delivered, left or sent under any of s 113(3)(a)-(c) but argues that nothing in s 113 generally, or s 113(3)(e) specifically, suggests that the legislature turned its mind to the “practical consequences” or “asymmetry of control”.
Whether the Mimecast repository documents might later have been amended, does not give rise to an issue as to receipt since, as a matter of procedural fairness, there could not be reliance on documents other than in the form that they had been provided. In my opinion, the authorities to which her Honour referred do not support or compel the conclusion her Honour reached.
Thus, I have concluded that the ground raised by the notice of contention is made good.
The second possibility under s 113 arises where the contract in question does not provide for the manner in which the document is to be given. Where that is the case, and s 113 applies, the document in question “must be given in a manner provided by subsection (3)”. Subparagraphs (a) to (d) of subsec (3) describe four different means of giving a document. Subparagraph (e) contemplates that an additional method or methods of giving a document may be authorised by the regulations “including the use of an electronic database, document system or any other means by which a document can be accessed electronically”.
Where a term in a statute is expressly defined, as “give” is for the purposes of s 113, the proper course is to "read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in its context and bearing in mind its purpose and the mischief that it was designed to overcome": Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [103]. Adopting that technique affects the way in which different parts of s 113(3) are to be construed. For example, the word “given” appears twice in the chapeau of s 113(3). Focusing on the second of those references, the chapeau should be read as if it says that any document may be “given, served, sent or otherwise provided” by one or other of the methods described in subpars (a) to (e). The broadest of these concepts for present purposes is to “otherwise provide” the documents. My analysis below focuses on how that particular form of “giving” interacts with the various options in (a) to (e).
None of the methods of giving authorised by subsecs (3)(a)-(e) is itself described using the language of “giving” the document. Other verbs are used to describe the action that constitutes the giving – “by delivering” the document, “by leaving” the document, “by sending” the document. Subparagraph (d), in authorising the giving of a document “by email”, is plainly concerned with the act of sending an email. Subparagraph (d) does use the word “giving” in a different context in requiring that the email address to which the email is sent must be one specified by the person for “giving” documents of that kind to the person. Applying the statutory definition, the subparagraph would be engaged if the email address was specified for giving, serving, sending or otherwise providing documents.
The relevant question arising on the facts of the appeal is whether the sending of the email which contained a link to the Mimecast repository, enabling the downloading of the relevant documents via Mimecast if and when the link was accessed, constituted a manner of giving those documents which is authorised by any of subpars (a) to (e). There is no suggestion that this is a form of giving “by delivering the document to the person personally” (s 113(3)(a)), “by leaving the document for the person at the person’s ordinary place of business” (s 113(3)(b)) or “by sending the document by post” (s 113(3)(c)).
That leaves only the possibility in s 113(3)(d). For the reasons explained above, that subparagraph needs to be read together with the chapeau, in light of the particular meaning to be given to the word “give” in s 113, flowing from s 113(1). Subparagraph (d) of s 113(3) thus provides in substance that a document may be “given, served, sent or otherwise provided to a person by email to an email address specified by the person for giving, serving, sending or otherwise providing documents of that kind to the person”.
Before considering these words further, it is necessary to recognise the contextual significance of subpar (e) of s 113(3). That subparagraph authorises (again read by reference to the expanded meaning of “giving”) the giving of documents “by any other method, including the use of an electronic database, document system or any other means by which a document can be accessed electronically authorised by the regulations for giving [serving, sending or otherwise providing] documents of that kind to the person”.
The regulations do not, and did not at the relevant time for the present appeal, authorise the giving of documents by the method adopted by the first respondent (ie sending by email a link to a Mimecast database). However, it does not follow that subpar (e) is irrelevant. The provision for an additional mode of authorised giving in subpar (e), and the words used to describe the kind of “giving” that may be so authorised, are important contextual features when it comes to construing the balance of s 113(3).
Critically, subpar (e) introduces the notion of giving a document by providing a means “by which a document can be accessed electronically”. It follows that at least in relation to subpar (e) the legislature intended to use the concept of “giving” or “providing” documents in an expansive sense, so as to encompass a technique in which the recipient is not given or provided with the documents themselves, but rather given or provided with a means of “accessing” the documents.
The additional point of interpretative significance arising from subpar (e) is that it demonstrates that the legislature in enacting s 113(3) was cognisant of, and directly addressed, the arrangement whereby one person enables another person to obtain documents in an electronic form by storing the documents in an electronic database or document system and then facilitating access electronically to those documents. The legislature chose to deal with that particular means of enabling access to documents through subpar (e). That involved a legislative choice that this particular means of “giving” documents could be authorised, but only if and when the regulations so provided (in which case the regulations would stipulate the particular method or methods so authorised). As a matter of context, that is a strong indication that such a method of document provision is not already authorised by s 113(3)(d).
The first respondent’s chosen method of communicating with the appellant about the adjudication review application sits naturally with the language of subpar (e). The first respondent facilitated the provision of the documents comprising the adjudication review application by using an electronic database through which the documents could be accessed electronically. Obviously enough, that is the kind of method of “giving” documents that would be capable of being authorised by regulations made for the purposes of s 113(3)(e). The decisive question is whether it nevertheless also fits the description of “giving” or “providing” the documents by email to the recipient’s email address.
In my view, it does not. The different language appearing in s 113(3)(e) reflects the clear distinction that exists as a matter of ordinary and natural meaning between, on the one hand, “giving” or “providing” a document to someone and, on the other hand, providing a means by which that person “can access” the document. As a matter of ordinary usage, when a thing is given or provided to a person, the act of giving or providing results in the recipient being in possession of that thing. When the act of the provider is complete, the recipient has the document in his or her possession, and the thing has been provided (or given). Where the thing, such as a document, exists in an electronic form, the proposition still holds. When, instead of being provided with the thing, the intended recipient is provided with a means of accessing the thing, the thing has yet to be provided. The intended recipient will only have the thing in his or her possession if and when it is in fact accessed.
As the evidence in the present case demonstrated, this distinction remains a real one in the context of electronic documents which are given or provided “by email”. A document may be given or provided by email when the document is attached to the email. Such a document is received by the email service of the recipient when the email is received. The document is then in the possession and control of the recipient. In his expert report at trial, Dr Chapman explained that once the email has arrived at the email service of the recipient it may, among other things, be “pushed” to the devices of the recipient (eg phone or laptop), stored in the centrally managed email archive of the recipient and re-routed to another email address (by being copied and sent).
The situation is different where the only thing which is given or provided by email is a link to an online document repository. None of the documents in question is provided with or as part of the email. They are not, in the relevant sense, given or provided “by email”. Further steps need to be taken by the recipient to obtain access to the documents. Such access is facilitated by the link which is provided by email. But that is the extent of what has been provided “by email”. Until they are accessed and downloaded by the recipient, the documents are not in the possession or control of the recipient. While the particular arrangements may differ from one system to another, the sender may well retain the ability to remove or alter the documents that are held in the online repository. This creates the real possibility that what is ultimately accessed (and thereby ultimately “provided” to the recipient) is not the same document or documents that existed at the time the email was sent. That tells against the notion that when the email was sent the documents themselves were provided to the recipient.
As the President has explained, the first respondent in its submissions submitted that it is impractical to draw distinctions of this kind, particularly because of the difficulties associated with enabling access to a large number of documents. In particular, the first respondent emphasises that it would have been impractical to serve the documents that accompanied the review application as attachments to emails, given the data limits associated with email attachments. The first respondent argues that the legislature would not have intended for s 113(3) to produce impractical consequences of this kind, and the legislature should be taken to have had a facilitative attitude to the use of data repositories like Mimecast. The solution is said to be an expansive reading of the concept of giving or providing documents “by email”.
While the factual premise of the argument is sound on the facts of this case, I do not agree that the proposition of statutory construction follows. As explained above, there are relevant functional distinctions between providing a document as an attachment to an email, and providing a link by email which facilitates access to a document held in a database. It cannot be assumed that the legislature intended that the latter was to be treated as the equivalent of the former. There may, of course, be many statutory contexts in which each means of facilitating access to documents is treated as equally effective. But for the reasons set out above s 113(3) contains significant textual and contextual indications that this is not the case when it comes to authorised modes of giving documents under that subsection.
This conclusion is no doubt inconvenient for a party in the position of the first respondent, given the practical difficulties with serving such a large volume of documents within the statutory timeframe. But that observation does not compel the construction of s 113 for which the first respondent contends. It is open to parties to a building contract to agree to different methods of giving documents, including by authorising service by the sending of links to databases like Mimecast. Section 113(2)(a) will give effect to such contractual choices. The impracticalities emphasised by the first respondent are to that extent a product of the terms of the contract to which the first respondent agreed to be bound. The legislation provides a second solution in that the regulations can authorise alternative methods for giving documents, including specifically by the provision of a means by which the recipient can access an electronic database like Mimecast.