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[2025] NSWSC 606
Supreme Court of NSW
2025-06-12
Stevenson J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Sharvain Facades Pty Ltd (Administrators Appointed) v Roberts Co (NSW) Pty Ltd [2025] NSWSC 606
Hearing dates: 5 June 2025
Decision date: 12 June 2025
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision: Payment claim served 28 February 2025; plaintiff accordingly entitled to judgment
Catchwords: BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payments Act 1999 (NSW) – service of payment claims – where payment claim sent after business hours through agreed electronic messaging system – where that system generated an email to an authorised recipient – where that email not opened until next business day – where contract deemed service after 5pm to be service on the next business day – whether deeming provision modified the operation of the Act and therefore void – operation of Electronic Transactions Act 2000 (NSW)
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Electronic Transactions Act 2000 (NSW)
Cases Cited: All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289
Austar Finance v Campbell [2007] NSWSC 1493
BCS Infrastructure Support Pty Ltd v Jones Lang Lasalle (NSW) Pty Ltd [2020] VSC 739
Demex Pty Ltd v John Holland Pty Ltd (2022) 12 QR 438; [2022] QSC 259
Hope v Hope (1854) 43 ER 534
MGW Engineering Pty Ltd t/a Forefront Services v CMOC Mining Pty Ltd [2021] NSWSC 514
Piety Constructions Pty Ltd v Hville FCP Pty Ltd [2022] NSWSC 1318
SGR Pastoral Pty Ltd v Christensen [2019] QSC 229
Trysams Pty Ltd v Club Constructions (NSW) Pty Limited [2007] NSWSC 1298
Trysams Pty Ltd v Club Constructions (NSW) Pty Limited [2008] NSWSC 399
Watpac Constructions Pty Ltd v Collins & Graham Mechanical Pty Ltd [2020] VSC 414
Category: Principal judgment
Parties: Sharvain Facades Pty Ltd (Administrators Appointed) (Plaintiff)
Roberts Co (NSW) Pty Ltd (Defendant)
Representation: Counsel:
A J Greinke / P J Hick (Plaintiff)
T J Breakspear SC / M Sheldon (Defendant)
Solicitors:
Chamberlains Law Firm (Plaintiff)
Baker McKenzie (Defendant)
File Number(s): 2025/122342
This is another case that turns on the date that a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the “Act”) was served.
The plaintiff, Sharvain Facades Pty Ltd (Administrators Appointed) (the “Contractor”) sent, by an agreed electronic message system, a payment claim for $3,207,999.03 to the defendant, Roberts Co (NSW) Pty Ltd (the “Principal”) at or about 7:17pm on Friday, 28 February 2025.
The relevant contract (the “Contract”) contained a provision to the effect that if a “Notice” was sent after 5pm on a business day, the Notice “will be treated to have been given to and received” by the addressee at 9am on the next business day (the “Deeming Clause”). [1]
Many building contracts contain clauses similar to the Deeming Clause. [2]
The business day following Friday, 28 February 2025 was Monday, 3 March 2025.
No one at the Principal became actually aware of the payment claim until then. Although mentioned in written submissions, in final oral submissions, Mr Breakspear SC, who appeared with Mr Sheldon for the Principal, did not contend that this fact had any significance.
The critical question is, then, whether the payment claim was served on 28 February 2025 or 3 March 2025.
That is because the Principal’s payment schedule was served on 17 March 2025; more than 10 business days after 28 February 2025 but within 10 business days of 3 March 2025. If the payment schedule was not served within 10 business days of service of the payment claim, the Contractor is entitled to judgment under s 15 of the Act. [3]
“23.2 Timing of progress claims
(1) The [Contractor] may submit a progress claim to the [Principal’s] representative through the EPC System at monthly intervals on the [28th] day of the month … in respect of work performed, or to be performed, by the [Contractor] up to the end of the relevant month”.
“… the electronic system for making and assessing progress claims and providing payment schedules, as approved by the [Principal] from time to time, with Payapps … being initially approved”.
“29 Notices
29.1 Form of Notice
A notice or other communication connected with this [Contract] (Notice) has no legal effect unless it is in writing.
29.2 How to give a Notice and when Notice is received
(1) A Notice must be given using one of the methods set out in the table below.
(2) Subject to clause 29.2(4), a Notice will be treated as having been given to and received by the addressee at the time set out in the table below. However, if that time is after 5pm on a Business Day or is not on a Business Day, then the Notice will be treated as having been given to and received by the addressee at 9am on the next Business Day.
| Method of giving Notice | When Notice will be treated as having been given and received | | By the Communication Platform or, where applicable, the EPC System. | At the time the Communication Platform or EPC System confirms delivery has been effected to the addressee. | | By hand at the address of the addressee set out in this [Contract] or last notified in writing. | Upon delivery. | | By prepaid priority post from an address in Australia to the address of the addressee set out in this [Contract] or last notified in writing. | On the third Business Day (at the address to which it is posted) after posting. | | By email to the email address of the addressee set out in this [Contract] or last notified in writing. | On the day it is sent. |
…
(4) A Notice under [a number of clauses dealing with termination and dispute resolution] or any Notice under the Security of Payment Act (excluding any progress claims and payment schedules) must be given by hand or prepaid priority post, plus copy given by email on the same day, in accordance with clause 29.2(2). The Notice referred to in this clause 29.2(4) will be treated as having been given to and received by the addressee at the time set out in clause 29.2(2) for giving the Notice by hand or prepaid priority post (as applicable).” (Emphasis in original.)
Clause 29.2(2) is the Deeming Clause.
It is common ground that references in the Contract to “progress claims” include references to payment claims for the purposes of the Act.
Dr Greinke, who appeared with Mr Hick for the Contractor, submitted that, on the proper construction of the Contract, and reading cll 23 and 29 together, the effect of the Contract is that the question of service of payment claims and payment schedules under the Act is dealt with exclusively by cl 23, and that cl 29 has no role to play in relation to service of those documents.
Dr Greinke submitted that that is so because:
(a) cl 23.2 makes specific reference to “a progress claim”; (b) the Deeming Clause in cl 29.2(2) is expressed to be “subject to clause 29.2(4)”; (c) cl 29.2(4) excludes progress claims and payment schedules under the Act from the particular requirements there specified.
I do not accept that submission.
Clause 23 is directed to the manner in which progress claims may be “submitted”.
On the other hand cl 29 is directed to “Notices” that are “connected with” the Contract. Such “Notices” include a payment claim. That is because a payment claim is a “notice or other communication connected with the [Contract”] for the purposes of cl 29.1. That is confirmed by the entry in the table in the Deeming Clause relating to the giving of notice through the EPC System. As I have set out, EPC System is defined to include a system for the making and assessing of progress claims and providing payment schedules.
Clause 29.2(4) specifies particular modes of service for certain documents, including a notice under the Act. But it excludes progress claims and payment schedules; no doubt because of the tension between the prescription in cl 29.2(4) and the facultative provisions for service set out in s 31 of the Act.
The result is that cl 29.2(4) is not engaged in the circumstances of this case.
I see cl 29 as providing a code within the Contract as to the service of “notices” generally.
As I have set out, the Payapps system was the approved EPC System for the purpose of submitting progress claims under cl 23 of the Contract.
In his affidavit, Mr Boris Kostura, a director of the Contractor, explained:
“Payapps is a project management software for the submission and assessment of progress claims for construction projects.
When a project is first created, the head contractor creates the project within the Payapps software. Setting up involves establishing the itemisation of contract line items and inserting the respective details in regard to the Project, including the parties to whom the Payapps should generate emails”.
The Principal nominated Mr Thomas Chiu as its representative on the Payapps system. His “@au.roberts.co” email address was specified.
At 7:18pm on 28 February 2025, Mr Kostura prepared and submitted the payment claim through the Payapps system.
The Payapps system generated an email addressed to Mr Chiu at his “@au.roberts.co” email address as well as to four other named persons, each of whom also had an “@au.roberts.co” email address.
The Payapps system also generated a message in the text of that email from “The Payapps team” to the Principal notifying it that Mr Kostura:
“… has just submitted claim 28 for contract Façade (Sharvain Façades) on project Westmead Childrens Hospital-S2”.
A copy of the document produced by Payapps is attached to these reasons. Payapps Email - Court Book pp 398-399_Redacted (1.44 MB, pdf)
The Payapps system also generated a document called “Claim History”. A copy of which is also attached to these reasons. Payapps Claim History - Court Book p 406 (393 KB, pdf)
The Claims History document records that the Contractor’s payment claim was “submitted” at 7:17pm, whereas Mr Kostura’s evidence, and the email to which I have referred, specifies the time as 7:18pm. The difference is not material.
What the matters I have set out above show is that, as a matter of fact, using the method of service “provided under the Construction Contract”, [4] namely the Payapps system, the progress claim was sent to an “email address specified” by the Principal “for the service of documents of that kind” [5] at 7:17pm or 7:18pm on 28 February 2025.
These are the means of service permitted by the Act.
Otherwise than where service is effected by post, [6] the Act does not specify when service by a means permitted by the Act occurs.
Thus, in All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [7] the Court said: [8]
“Similarly, s 31(1)(e) specifies the manner in which a notice, including a payment claim, may be served, and confirms that the parties may agree to that occurring as provided under the construction contract. Each of paragraphs (a)-(d) in s 31(1) identifies a manner of service, and s 31(1)(e) refers to that genus by the words “in such other manner” and makes applicable any other manner to which the parties have agreed in their contract. None of those paragraphs says anything about the time at which service is to be effected. Indeed, confirmatory of this is s 31(2), which makes separate provision for time where service is effected by post. … It suffices to say that nothing in s 31(1), including s 31(1)(e), is addressed to altering the time, as opposed to the manner, of service.” [9] (Emphasis in original.)
Mr Breakspear and Mr Sheldon submitted that it does not follow from the fact that the Payapps system generated an email addressed to, amongst other people, Mr Chiu, that the Principal received the email on the date and at the time the email was sent to Mr Chiu’s email address.
The object of service is, of course, to give notice to the party potentially affected as to what is being sought against them. [10]
Differing views have been expressed as to when under the general law an email sent to a particular email address is taken to have been received at that email address.
Those views include:
only when the email and its attachments are opened; [11]
when “the electronic copy of the application and supporting affidavit was received, in a complete and legible form, at the address for service, within the prescribed time”; [12] and
when the email is received. [13]
It has been held that the mere uploading of a payment claim to a cloud based third party system on a certain date is not sufficient. [14]
But here, that Payapps system generated the email to Mr Chiu.
Were it necessary to determine when, as a matter of general law, the email was in this case received, I prefer the views expressed at [38(2)] and [38(3)] above. Otherwise, in circumstances where the parties must have contemplated a monthly submission by the Contractor of payment claims under the Act, the result would depend on when the Principal’s representatives chose to access their emails.
In any event, the effect of s 13A of the Electronic Transactions Act 2000 (NSW), assuming it applies, is that, because Mr Chui’s email address was the “electronic address designated” by the Principal, the time of the receipt of that email was when it became “capable of being retrieved” by Mr Chiu; [15] that is, on Friday, 28 February 2025.
The Electronic Transactions Act does not apply if the parties have “otherwise agreed”.
The parties have purported to do so by the Deeming Clause.
As between the Principal and the Contractor, and leaving aside the operation of the Act, the Deeming Clause has effect in accordance with its terms.
The effect of the observations of the Court of Appeal in All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd, to which I have referred, appears to me to be that there is nothing in the Act that itself operates to give effect to the Deeming Clause.
However, the Court of Appeal also observed, in obiter, that the clause in that case equivalent to the Deeming Clause might well have been void by reason of s 34 of the Act by reason of, in the particular circumstances in that case, having the effect of modifying the operation of the Act. [16]
In this case, I agree with the submission of Dr Greinke that the purported effect of the Deeming Clause is to modify the operation of the Act.
It does so by purporting to change the meaning of “business day”.
“Business day” is defined in the Act to be “any day” other than a number of nominated exceptions. [17]
Thus, under the Act, a document can be served at any time during those days. Time begins to run, for example under s 14(4)(b)(ii) for the service of a payment schedule, on the next business day.
The purported effect of the Deeming Clause, as it applies here, is that time begins to run one day later because a business day is deemed to conclude at 5pm.
The purported effect of the Deeming Clause is to postpone the date on which, adopting the definition of “business day” in the Act, the payment claim was taken to be served.
Were the Deeming Clause in this case not to be seen as purporting to modify the operation of the Act, there would be no reason why the parties could not agree that if a document is served after 5pm, it should be taken to have been served any number of days later, thus leaving it to the parties to decide with what speed the processes under the Act should operate.
For those reasons, my conclusion is that the Deeming Clause purports to modify the operation of the Act and is void.
The Deeming Clause must, in those circumstances, be void for all purposes. [18]
Thus, the Electronic Transactions Act operates in the manner I have set out.
The Contractor is entitled to judgment.
The parties should bring in short minutes to give effect to these reasons.
**********
Contract, cl 29.2(2).
I have considered such clauses in MGW Engineering Pty Ltd t/a Forefront Services v CMOC Mining Pty Ltd [2021] NSWSC 514 at [75]-[81] and Piety Constructions Pty Ltd v Hville FCP Pty Ltd [2022] NSWSC 1318 at [9], [17], [32]-[37].
Section 14(4)(b)(ii) of the Act.
See the Act, s 31(1)(e).
See the Act, s 31(1)(d).
See the Act, ss 31(1)(c), 31(2).
[2017] NSWCA 289.
At [37(2)] (Leeming and Payne JJA, White JA agreeing).
My obiter observations in the last sentence of [81] in MGW Engineering Pty Ltd v CMOC Mining Pty Ltd (supra) appear to be inconsistent with these observations.
The Lord Chancellor, Lord Cranworth, in Hope v Hope (1854) 43 ER 534 at 539.
Austar Finance v Campbell [2007] NSWSC 1493 at [48] (Austin J).
SGR Pastoral Pty Ltd v Christensen [2019] QSC 229 at [37] (Bowskill J, as the Chief Justice then was), after considering the decision in Austar Finance v Campbell (supra): at [31], [37].
Demex Pty Ltd v John Holland Pty Ltd (2022) 12 QR 438; [2022] QSC 259 at [67] and [100] (Crowley J).
BCS Infrastructure Support Pty Ltd v Jones Lang Lasalle (NSW) Pty Ltd [2020] VSC 739 at [119]-[122] (Stynes J).
Electronic Transactions Act, s 13A(1)(a).
(supra) also at [37(2)] (Leeming and Payne JJA, White JA agreeing).
Section 4(1): a Saturday, Sunday or public holiday, and 27, 28, 29, 30 and 31 December.
See Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2007] NSWSC 1298 at [16] (Hammerschlag J, as the Chief Judge in Equity then was) and Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2008] NSWSC 399 at [72] (McDougall J, evidently intending to refer to this decision of Hammerschlag J rather than the one there cited)). I see nothing in the decision of Riordan J in Watpac Constructions Pty Ltd v Collins & Graham Mechanical Pty Ltd [2020] VSC 414 at [58]-[72] to compel a contrary conclusion: his Honour was there dealing with the extent to which a particular clause was void by the Victorian equivalent to s 34 of the Act; not with whether a clause entirely void is void for all purposes.
Sharvain Facades Pty Ltd (Administrators Appointed)
Roberts Co