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Equinox Construction Pty Ltd v Henning QSC 223
SUPREME COURT OF QUEENSLAND
Equinox Construction Pty Ltd v Henning & Anor  QSC 223
EQUINOX CONSTRUCTION PTY LTD
BRUCE CHRISTOPHER CULL
7369 of 2020
Supreme Court at Brisbane
31 August 2021
13 August 2021; 25 August 2021 (further submissions)
It is declared that the second respondent’s adjudication decision of 25 March 2020 is void.
I make no order as to costs.
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – OTHER MATTERS – where the first respondent received an adjudication decision in his favour against the applicant – where the applicant seeks a declaration that the adjudicator’s decision is void for jurisdictional error – whether the first respondent “gave” the applicant a copy of the adjudication application in accordance with s 79(3) of the Building and Construction Building Industry Fairness (Security of Payment) Act 2017 (Qld)
Building and Construction Building Industry Fairness (Security of Payment) Act 2017 (Qld), ss 79(3), 102
Acts Interpretation Act 1954 (Qld), s 39, 39A
Brown v Bluestone Property Services Pty Ltd  NSWSC 869, considered
Capper v Thorpe (1998) 194 CLR 342, considered
CMF Projects Pty Ltd v Masic Pty Ltd & Ors  QSC 209, cited
Conyeyor & General Engineering Pty Ltd v Basetec Services Pty Ltd and Anor  QSC 30, considered
Deputy Commission of Taxation, in the matter of ABW Design and Construction Pty Ltd v ABW Design and Construction Pty Ltd  FCA 346, considered
Dwyer v Canon Australia Pty Ltd  SASC 100, cited
Emag Constructions Pty Limited v Highrise Concrete Contractors (Aust) Pty Limited  NSWSC 903, considered
Grant Thornton (Qld) Pty Ltd v Green Global Technologies Ltd  QSC 262, considered
Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542, cited
McCarthy v TKM Builders Pty Ltd & Anor  QSC 301, considered
Morel v Bank of Queensland Limited  QCA 207, considered
National Management Group Pty Ltd v Biriel Industries Pty Ltd trading as Master Steel & Ors  QSC 219, cited
Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd & Anor  QSC 91, considered
Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd  NSWSC 1216, considered
Pearlburst Pty Ltd v Summers Resort Group Pty Ltd  NSWSC 1126, cited
S Hogg for the Applicant
G Robson (solicitor) for the First Respondent
No appearance for the Second Respondent
Fenson Lawyers for the Applicant
North Law for the First Respondent
No appearance for the Second Respondent
- Where a party to a construction contract applies for adjudication of a payment claim, that party must “give” a copy of their application for adjudication to the respondent to it under section 79(3) Building Industry Fairness (Security of Payment) Act 2017 (the BIF Act).
- In Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd & Anor  QSC 91, I found that “service” of an adjudication application upon the respondent to the payment claim was required for a valid adjudication decision, under section 21(5) of the previous incarnation of the BIF Act (the Building and Construction Industry Payments Act 2004 (BCIPA)). Wilson J agreed with me in National Management Group Pty Ltd v Biriel Industries Pty Ltd trading as Master Steel & Ors  QSC 219; and Martin J agreed with her Honour in McCarthy v TKM Builders Pty Ltd & Anor  QSC 301.
- In this matter, the first respondent, Mr Henning, served a payment claim upon the applicant, Equinox. Equinox did not pay the claim or issue a payment schedule (which is an offence under the BIF Act). Mr Henning applied for the adjudication of his payment claim and ultimately received an adjudication decision in his favour against the Equinox.
- Equinox applies for a declaration that the adjudication decision is void for want of jurisdiction because Mr Henning did not “give” Equinox a copy of his adjudication application. Mr Henning said he posted a copy of the adjudication decision to Equinox. Equinox said it did not receive it.
- At first, the question which seemed to be raised by the application was whether Mr Henning “gave” Equinox a copy of his adjudication application by posting it – even if, on the evidence, it was not received. However, as will emerge, neither party took enough care with the evidence assembled for this matter. And the critical issue for me became whether I could overlook deficiencies in the evidence of the first respondent and infer, from the insufficient evidence, that he “gave” Equinox a copy of his adjudication application by posting it in accordance with the facultative provisions of the Acts Interpretation Act 1954 upon which he relied. I found, having regard to relevant authority, that I could not overlook the deficiencies. In my view, strict proof of “giving” was required.
- It follows that I could not be satisfied that the adjudicator had jurisdiction to make a decision on Mr Henning’s payment claim and his decision was therefore void. That does not mean that Mr Henning is not able to recover the money he says he is owed by Equinox. But it means that he cannot rely upon the adjudication procedures of the BIF Act to do so.
- In the circumstances of this case, where the applicant did not provide the court with much assistance on the issue on which it succeeded, I considered it appropriate, in the exercise of my discretion, to make no order as to costs.
- My formal orders are:
It is declared that the second respondent’s adjudication decision of 25 March 2020 is void.
I make no order as to costs.
- My reasons follow.
- Section 79 is in Part 4 of Chapter 3 of the BIF Act. Section 102 in is Part 7 of the same chapter. The BIF Act elaborates on what is required for the “giving” of notice or a document, for the purposes of Chapter 3, in section 102:
102 Service of notices
- (1)A notice or other document that, under this chapter, is authorised or required to be given to a person may be given to the person in the way, if any, provided under the relevant construction contract.
A contract may allow for services of notices by email.
- (2)Subsection (1) is in addition to, and does not limit or exclude, the Acts Interpretation Act 1954, section 39 or the provisions of any other law about the giving of notices.
- (3)To remove any doubt, it is declared that nothing in this Act –
- (a)excludes the proper service of notices or documents by a person’s agent; or
- (b)requires a person’s acknowledgment of a notice of document properly given to the person.
- Section 39 of the Acts Interpretation Act 1954 states:
39 Service of documents
- (1)If an Act requires or permits a document to be served on a person, the document may be served –
- (a)on an individual –
- (i)by delivering it to the person personally; or
- (ii)by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document; or
- (b)on a body corporate – by leaving it at, or sending it by post, telex, facsimile or similar facility to, the head office, a registered office, or a principal office of the body corporate.
- (2)Subsection (1) applies whether the expression ‘deliver’, ‘give’, ‘notify’ ‘send’ or serve’ or another expression is used.
- (3)Nothing in subsection (1) –
- (a)affects the operation of another law that authorises the service of a document otherwise than as provided in the subsection; or
- (b)affects the power of a court or tribunal to authorise service of a document otherwise than as provided by the subsection.
- Section 39A of the Acts Interpretation Act 1954 is also relevant. It states (my emphasis) –
39A Meaning of service by post etc.
- (1)If an Act requires or permits a document to be served by post, service –
- (a)may be effected by properly addressing, prepaying and posting the document as a letter; and
- (b)is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.
- (2)If an Act requires or permits a document to be served by a particular postal method, the requirement or permission is taken to be satisfied if the document is posted by that method or, if that method is not available, by the equivalent, or nearest equivalent, method provided for the time being by Australia Post.
- (3)Subsections (1) and (2) apply whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.
- Also of relevance is section 109X of the Corporations Act 2001. Under that section, for the purposes of any law, a document may be served on, given to, or sent to, a company by (inter alia) posting it to the company’s registered office.
Overview of the present case
- The present case involved a construction contract between Equinox, a company which was building town houses at Annerley, and Mr Henning, a landscaper.
- In February 2020, Mr Henning made a claim for payment by Equinox for work he’d done for $29,255.88. Equinox failed to respond to the payment claim, either by paying it in full or by way of giving Mr Henning a payment schedule within the response period (an offence).
- On 5 March 2020, Mr Henning applied for an adjudication of his February 2020 payment claim. He says he “gave” the respondent a copy of his application for adjudication by post as required by the BIF Act. He received an adjudication decision in his favour, on 25 March 2020.
- Equinox said it did not receive the copy of the adjudication application and that the first it became aware of the adjudication was on 31 March 2020, when it was notified, by email, by a third party (Karen Higgins from ABC Dispute Resolution Service), that Mr Henning had received an outcome in his favour.
- On 12 May 2020, Mr Henning filed the adjudication certificate in the Redcliffe Magistrates Court as a judgment for a debt.
- A little over three months after learning that Mr Henning had received an adjudication in his favour, on 7 July 2020, Equinox applied to this Court for a declaration that the adjudication decision was void for jurisdictional error, because the company had not been given a copy of the application. The application for a declaration was filed on 7 July 2020.
- On 17 August 2020, Equinox obtained an order for substituted service of its application for a declaration upon Mr Henning. However, its next step in pursuit of the declaration was not taken until July of 2021 – triggered, it seems, by Mr Henning’s service upon it, on 11 June 2021, of a statutory demand for the adjudication amount.
- There was no objection to any of the evidence produced by either side to this application – all of which consisted of affidavits and a variety of documents exhibited thereto; and much of which involved hearsay.
- Mr Henning’s evidence of his posting a copy of the adjudication application is critical evidence in this case. He deposed to the following preliminary matters:
- On 14 February 2020, he emailed a payment claim (invoice #401) to the applicant at [email protected]. This was the claim the subject of the adjudication.
- He was able to “see” that his payment claim had been viewed and downloaded on multiple occasions (he annexed to his affidavit copies of screen shots of his digital book-keeping program to support his evidence).
- He received no payment schedule in response to his payment claim.
- He filed an adjudication application on 5 March 2020 with the QBCC.
- As to what he did to “give” a copy of the adjudication application to the applicant, he said (my emphasis):
“ On 9 March 2020 I did attend the Kallangur Australia Post Office in order to send the Adjudication Application to the Applicant’s address as per the QBCC’s Licence Search at the time.
 The address for the Applicant at that time was Unit 22, 56 Sanders Street Upper Mt Gravatt Queensland 4122.
 I documented the posting by taking a photo of the envelope containing the Adjudication Application inside the Kallangur Post Office with the date and time in the background on 9 March 2020 at 2.29 pm.
 Exhibited hereto and marked “JH-7” is a true copy of a photo taken in the Kallangur Post Office as referred to in paragraph 23 above.
 I recorded my return postal address on the back of the envelope of [address] and, as at the date of swearing this my affidavit, it has never been returned to me, as sender.
 The purchase order of the Applicant relevant to this matter also notes its address as Unit 22, 50 – 56 Sanders Street, Upper Mt Gravatt Q 4122.”
- It may be noted that, although Mr Henning said in his affidavit that he attended the post office “in order to post” the adjudication application to the applicant, he did not say that he paid the postage; nor did he say that he actually posted the envelope. Further, there is a difference between the addresses stated in  and . This difference was missed by both parties.
- At the hearing, the first respondent relied upon an affidavit of his solicitor, Gregory Robson, which exhibited “a true copy of an ASIC search extracted on 8 June 2021”. That search relevantly revealed that there had been a change in Equinox’s registered address and principal place of business address in March 2020. Neither Mr Henning nor Mr Robson exhibited to their affidavits an “ASIC search” revealing Equinox’s registered office address or principal place of business address at the relevant time (that is, on 9 March 2020). Nor did they exhibit evidence of the QBCC search which Mr Henning said he undertook.
- JH-7 (referred to in  of Mr Henning’s affidavit) is a poor-quality photocopy of the screen of a mobile phone, showing a photograph of an envelope bearing the following handwritten address:
56 Sanders ST
Upper Mt Gravatt 4122”
- The photocopy is of such poor quality that I am unable to make out whether in fact there is a clock in the background and if so, what date and time the clock shows. But the photocopy of the screen of the mobile phone (from its Photos App) shows (or purports to show) the location, date, and time at which the photograph was taken, namely Kallangur, March 9, 2020, 14:29.
- The address on the envelope is not identical to the address on Equinox’s purchase order referred to in paragraph  of Mr Henning’s affidavit. Nor is the address on the envelope identical to Equinox’s registered office address as per the ASIC records. I called for further submissions from the parties as to whether the envelope was “properly addressed” (cf section 39A(1)(a) Acts Interpretation Act).
- It was not until my call for further submissions that the first respondent obtained and exhibited evidence of the QBCC licence search which he undertook. It recorded Equinox’s “business address” as “U 22 56 Sanders St Upper Mount Gravatt Qld 4122”.
- The envelope shown in JH-7 does not appear to bear postage stamps or a franking mark to convey that the cost of its postage had been paid (although the whole of the envelope was not captured by the photograph).
- Although the photocopy is of poor quality, I can make out that the envelope bears, in its top right corner, a black rectangle containing the words “POSTAGE PAID” and, underneath those words, the word “AUSTRALIA”. It seems, although it is hard to tell for sure, that the black rectangle was marked on the envelope itself. In other words, doing the best I can, it seems that when the envelope was selected by the first respondent, it already bore the “postage paid” marking.
- What that marking meant was not explained by the first respondent or in any of the other evidence before me. For example, I was not told whether the cost of a “postage paid” envelope covered the cost of posting its contents; or covered the cost of posting its contents up to a certain weight; or whether the postage paid marking was irrelevant because Mr Henning paid separately the cost of postage; or whether it would not achieve postage of the letter unless the envelope was also franked.
- I was also not told how Mr Henning posted the envelope; for example, whether he handled it to a person at the counter at Australia Post, or whether he placed it into a red post box. Nor, as I have observed, did he actually say in his affidavit that he posted it.
- Mr Henning’s affidavit annexes, as exhibit JH-4, an email chain between the first respondent and “Daisy Tian” at email address [email protected], dated 28 January 2020, the contents of which relate to the payment claim the subject of the adjudication. The affidavit annexes, as exhibit JH-9, an email from Karen Higgins, of ABC Dispute Resolution Service, on behalf of the adjudicator, sent to the first respondent’s email address and [email protected] indicating that the adjudicator (Bruce Cull) had accepted the adjudication application on 13 March 2020. The affidavit also annexes, as exhibit JH-10, a reply from “Bikk” of Equinox from the same email address as that referred to above to Karen Higgins on 2 April 2020 – for the purpose of supporting the inference that he received emails sent from Ms Higgins’ email address.
- On 8 June 2021, Mr Henning instructed his solicitor, Mr Robson, to issue a Creditor’s Statutory Demand for the recovery of the judgment debt for the adjudicated amount. As noted above, the statutory demand was served on the applicant on 11 June 2021.
- Not long thereafter, Equinox’s solicitor, Mr Wu, contacted Mr Henning’s solicitor, Mr Robson, to ask whether he held instructions in relation to their July 2020 application for a declaration that the adjudication decision was void. Mr Henning told Mr Robson he knew nothing about the applicant’s application for a declaration. Mr Robson was served with it on 28 June 2021.
- Equinox’s registered address has always been its accountants’ address.
- Equinox’s accountants are the firm “LWS Accountants”. LWS Accountants’ sole director and principal is Li Wen Shen.
- According to paragraph 4 of the affidavit of Mr Shen, LWS Accountants occupied Suite 22, 50 – 56 Sanders Street, Upper Mount Gravatt, from 12 July 2018 until the “the first week of December 2019”, when the accountants moved to an address in South Brisbane.
- According to paragraph 5 of his affidavit, Mr Shen “caused a mail direction (sic) to be put in place through Australia Post before LWS moved offices on 21 February 2020. Annexed hereto and marked LWS-01 is a copy of that mail redirection” (my emphasis).
- Obviously, paragraphs 4 and 5 (including exhibit LWS-01) of Mr Shen’s affidavit are inconsistent. Paragraph 4 states that LWS moved offices in the first week of December 2019. Paragraph 5 implies that the accountants did not move offices until at least 21 February 2020. Neither party picked up on this inconsistency.
- Mr Shen provided no detail of the old or new addresses stated in the application for redirection in the body of his affidavit. It seems that he intended to rely on exhibit LWS-01 for those details.
- Exhibit LWS-01 purports to be a copy of the Application to Redirect Mail form. Presumably, it was intended to be of some evidential value in establishing that LWS arranged for the redirection of mail sent to “Suite 22, 50 – 56 Sanders Street, Upper Mount Gravatt, 4122” to its new South Brisbane address. However, exhibit LWS-01 has been created without care.
- A receipt for the payment of the redirection fee was stapled to the front of what I assume is the original of the redirection form, or perhaps LWS’s copy of the form. The receipt was not moved out of the way when the form was photocopied for the purposes of creating the exhibit to Mr Shen’s affidavit. The receipt obscures critical details of the application for redirection, including the “old” address nominated on the form and part of the names of the organisations “covered” by the application.
- Also, apart from the receipt obscuring much of the left hand side of the form, the photocopy does not capture the whole of the form – it cuts off the right hand side of it, including the date upon which it was completed. The date on which the redirection fee was paid does appear on the receipt stapled to the form (21 February 2020). The receipt nominates the start date (26 February 2020) and end date (25 March 2020) of the redirection. But the receipt does not state the old and new addresses. (It will be recalled that the critical date is 9 March 2020).
- Thus, neither Mr Shen’s affidavit proper, nor exhibit LWS-01, provided evidence of the actual address from which mail was redirected from 26 February 2020 to 25 March 2020.
- While the receipt obscures part of the names of the organisations “covered” by the redirection, I am confident in concluding that “Equinox Construction Pty Ltd is not listed.
- Even if I were prepared to infer that the application to redirect mail stated that mail was to be redirected from “Unit 22, 50 – 56 Sanders Street Mount Gravatt” to the new South Brisbane address of LWS Accountants, the applicant produced no evidence to explain what the omission of the applicant’s name from the list of organisations covered by the application for redirection meant for mail sent to Equinox Constructions at the Mount Gravatt address.
- According to Mr Shen, if LWS Accountants received mail for Equinox, its practice was either to forward it/post it to Equinox’s business address (currently in Camberwell, Victoria) or to scan it to either Liping Huang, the primary contact for the applicant (via email at [email protected]) or to Bikk Lau, the applicant’s sole director and shareholder at [email protected]
- According to Mr Shen, no one at LWS Accountants ever received a copy of the adjudication application. He said that a Ms Angela Duong was “employed by an entity associated with LWS to attend the old address to check for mail in case any of it did not get redirected, which I know from speaking to her that she did”.
- His affidavit went on, quoting from paragraphs 8 and 9:
“For important correspondence, such as something like the notice for adjudication which was allegedly served on Equinox, LWS staff members would give me the correspondence for me to review. I would then get the staff member to send the correspondence on to Equinox, either in hard copy or by scanning and emailing it.
I have asked all staff at LWS whether they have received any correspondence for Equinox relating to Mr Henning’s adjudication application. They have all told me that they have not. I have not received any correspondence for Equinox relating to this matter either. If I had received it I would have sent it on to Equinox the same day.”
- In his affidavit, Mr Lau says that he received by email a copy of the adjudication decision for Mr Henning’s claims against Equinox (that is, the email from Ms Higgins). He says “before then I was not aware that Mr Henning had started the adjudication process”. Annexed to his affidavit is an email chain between himself and Ms Higgins which is – on its face – consistent with Mr Lau having no prior knowledge of the adjudication decision. Mr Lau also states in his affidavit that he is aware of the adjudication process and the tight timeframes which come with it. He states that he did not receive the adjudication application or “the adjudicator’s acceptance of his appointment”. Mr Lau’s affidavit said nothing about the February 2020 payment claim or Equinox’s not responding to it.
- The “Current & Historical Company Extract” for Equinox Constructions Pty Ltd, dated 8 July 2021, shows its current registered address, as from 19 March 2020, as including the name of the accounting firm –
“Registered address: LWS Accountants Pty Ltd, 22 Brereton Street, SOUTH BRISBANE QLD 4101”
- Its relevant “Historical” Registered Address (from 12 July 2018 until 18 March 2020) did not include the accountants’ name. Its registered address was stated to be “Suite 22, 50 – 56 Sanders Street, Upper Mount Gravatt Qld 4122”.
- ASIC records state that the applicant’s principal place of business was at the same Mount Gravatt address from 11 April 2019 until 29 February 2020, after which it moved the address for its principal place of business to its accountants’ South Brisbane address.
- there were deficiencies in Mr Henning’s affidavit about the steps he took to post a copy of the adjudication application to Equinox.
- There were inconsistencies in Mr Shen’s affidavit about when his firm moved offices.
- There were deficiencies in Mr Shen’s affidavit about the mail re-direction he put in place.
- The copy of the mail redirection form exhibited to Mr Shen’s affidavit did not reveal the details of the mail re-direction.
- The applicant’s name was omitted from the list of organisations to which the mail re-direction applied.
- The applicant’s evidence did not clarify whether that mattered or not.
- The ASIC records lagged behind the reality – if the accountants moved to South Brisbane in the first week of December 2019 or 26 February 2020, as sworn to by Mr Shen.
- The QBCC licence search (dated 13 March 2020) lagged behind the reality – if indeed the accountants moved to South Brisbane in the first week of December 2019 or 26 February 2020, as sworn to by Mr Shen.
- The applicant submitted that Mr Henning’s evidence was insufficient to prove either that he posted the application to the applicant, or that the applicant received it.
- The applicant submitted that Mr Henning’s evidence of posting was deficient because it –
- Did not say “directly what address he [Mr Henning] posted the adjudication application to” – all he says is that he attended the post office in order to send the letter to the applicant’s address as revealed by the QBCC licence search;
- Fell short of saying that he actually posted the letter;
- Did not say what postage he affixed to the letter; and
- Whilst the first respondent tendered a photograph of the addressed envelope, the address is difficult to make out.
- Further, the applicant said, there was no evidence of Equinox’s receipt of the adjudication application. The letter was not sent by registered post, for example, and Equinox’s evidence established that it did not receive a copy of the application. The applicant relied upon authorities to the effect that a document will be served if the person to be served has become aware of the contents of the document – namely, Capper v Thorpe (1998) 194 CLR 342 at 352 (Capper); Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542 at 544, 545 (Howship); and Conyeyor & General Engineering Pty Ltd v Basetec Services Pty Ltd and Anor  QSC 30 (Basetec).
First Respondent’s submissions
- The first respondent relied upon section 39 of the Acts Interpretation Act 1954 to prove that the applicant had been given a copy of the adjudication application as required. In the alternative, the first respondent submitted that the applicant had breached its undertaking in accordance with rule 5 of the Uniform Civil Procedure Rules 1999, which warranted sanction by way of dismissing the application, for its failure to prosecute its application for a declaration. The first respondent submitted that he had done all he could do to give a copy of the adjudication application to the applicant. He relied upon McCarthy v TKM Builders & Anor  QSC 301 (McCarthy) “as a summary of the law and distinguishable on the basis that no electronic means of service was relied upon for the giving of notice by the first respondent”.
- It is worth setting out in full the first respondent’s submissions on the “giving by post” point. He submitted at the hearing (my emphasis) –
“C QUESTIONS TO BE DETERMINED
Has the applicant been given a copy of the Adjudication Application by the first respondent as required by section 102 of the BIF Act.
The first respondent says he has done so by reason of posting the adjudication application in accordance with section 39 of the Acts Interpretation Act 1954.
E FIRST RESPONDENT’S COMPLIANCE WITH THE BIF ACT
[After setting out section 39 of the Acts Interpretation Act 1954]
4 There was a Purchase Order of the applicant noting the address of Suite 22, 50 – 56 Sanders Street Upper Mt Gravatt 4122) as the basis of the works to be performed by the first respondent.
5 The first respondent deposes to the fact that at the relevant time the [QBCC] Licence search had that address as the applicant’s business address (and that is consistent with the Purchase Order).
6 In any event the ASIC search at least (sic) 12 March 2020 had the registered office address of Suite 22, 50 – 56 Sanders Street Upper Mt Gravatt with a cessation date of 18 March 2020.
7 On 9 March 2020, the first respondent deposes to himself posting the adjudication application from the Kallangur Post Office and took a photograph of the relevant envelope noting an address of Suite 22, 56 Sanders Street Upper Mt Gravatt QLd 4122 and which noted in the background the date of 9 March 2020 (as noted in the screen shot also of the photo).
8 The first respondent, in compliance with its obligations under section 39 of the Acts Interpretation Act 1954 could not have posted it to any other address … because as deposed to at all relevant times the QBCC search, the Purchase Order and the ASIC search has the relevant address as Suite 6 (sic), 50 – 56 Sanders Street Upper Mt Gravatt Qld 4122.”
- These submissions are not accurate. The QBCC licence search did not reveal Equinox’s “Business Address” to be the same address as on its purchase order (cf paragraphs  and ). While it may seem small, there is a difference between “56” and “50 – 56” Sanders Street. The applicant did not depose to “himself posting the adjudication application” (cf paragraph ) – although he got close. Nor does the photograph of the envelope show the date in its background.
The parties’ authorities
- The question in McCarthy was whether the means used by the first respondent (TKM) to “give” a copy of an adjudication application to Mr McCarthy were sufficient. The outcome in that case reflects, in my respectful view, the strictness with which the requirement to “give” is enforced.
- TKM sent an email to Mr McCarthy in the following terms:
“Please find below link to correspondence and attached adjudication claim lodged with the QBCC today.
[https address for a Dropbox link]”
- The email attached the adjudication application but not the submissions. The submissions could only be obtained by opening the Dropbox link. Mr McCarthy said he received the email but did not open the Dropbox link. He said he did not otherwise receive the documents available via Dropbox. He forwarded the email to his solicitors for them to respond to it. As part of the response, Mr McCarthy’s solicitors argued that Mr McCarthy had not been given a copy of the adjudication application in accordance with section 79(3) of the BIF Act and, as a result, the adjudicator did not have jurisdiction. The adjudicator held that he had jurisdiction. Mr McCarthy successfully appealed.
- In deciding that Mr McCarthy had not been given a copy of the adjudication application, Martin J considered and applied the decision of McMurdo J in Basetec, which held that service of a document requires something in the nature of its receipt.
- Martin J summarised Basetec as follows:
“ In Basetec, the respondent made an adjudication application in respect of a number of payment claims. The respondent sent the adjudication applications to the applicant attached to an email and the email included links to two files stored on Dropbox. Those files constituted part of the adjudication application. Justice McMurdo gives detailed consideration to the provisions of BCIP Act, the Acts Interpretation Act 1954 and the Electronic Transactions (Queensland) Act 2001 in paragraphs 21 – 37 of his Honour’s reasons.
 In that analysis, his Honour referred to authorities to the effect that a document will be served if the efforts of a person who is required to serve it have resulted in the person to be served becoming aware of the contents of the document.
 The provisions of s 39 of the Acts Interpretation Act 1954, set out above, say how a document may be served on – or given to – an individual. It provides for personal service which did not occur in this case or by sending it by “post, telex, facsimile or similar facility to, the address of the place of residence or business of the person”.
 Justice McMurdo said:
“ Actual service does not require the recipient to read the document. But it does require something in the nature of a receipt of the document. A document can be served in this sense although it is in electronic form. But it was insufficient for the document and its whereabouts to be identified absent something in the nature of its receipt. The purported service by the use of the Dropbox facility may have been a practical and convenient way for CGE to be directed to and to use the documents. But at least until 2 September 2013 (when Mr How became aware of the contents of the Dropboxes), it did not result ‘in the person being served becoming aware of the contents of the document’.”
 The same reasoning, with respect, applies in this case. Mr McCarthy did not become aware of the contents of the document merely by being referred to a link to a Dropbox file. It is not enough, if it can be shown, that the respondent’s solicitors saw the submissions when Mr McCarthy forwarded the email. Service must be effected in accordance with s 39 of the Acts Interpretation Act. It follows, then, that he was not given the adjudication application as required by s 79 of the BIF Act.”
- The facts in Basetec were as follows. Basetec obtained an adjudication decision in its favour. CGE challenged the decision, submitting that the application was not duly served by Basetec upon it and that the adjudicator, therefore, had no jurisdiction.
- On 23 August 2013, Ms Forsyth from Basetec sent an email to Ms Scott of Porter Davies (CGE’s solicitors) which attached three documents: two adjudication applications and a letter to the Institute of Arbitrators and Mediators. Within the email itself was a copy of the email which Ms Forsyth sent to the Institute that day. That email to the Institute said:
“Please find attached letter, Adjudication Application Forms as well as Dropbox links below for the two Adjudication Applications …”
- Below that sentence were Dropbox links.
- Ms Scott read the email and its attachments that day (23 August 2013) but did not look at the documents within the Dropbox files. On 26 August 2013, Ms Forsyth sent an identical email to Mr How of CGE. He read the email and its attachments but did not look at the documents within the Dropbox files.
- The question was whether, because of its use of the Dropbox facility, Basetec had duly served the adjudication application. BCIPA, the Acts Interpretation Act 1954 and the Electronic Transactions (Queensland) Act 2001 (the ETA) were relevant. I will say nothing further about his Honour’s interpretation of the ETA because it has no application here.
- Justice McMurdo drew a distinction between “sending” a document and telling a party where they might find a document (that is, in Dropbox). His Honour said, even if the Acts Interpretation Act applied to emails (and that was open to doubt), it could not be said that documents in the Dropbox file were left at, or sent to, CGE’s office, at least until CGE went to the Dropbox site, and probably not until the relevant contents had been downloaded to a computer at CGE’s office. His Honour held that the adjudication application was not served as contemplated by section 39 of the Acts Interpretation Act.
- His Honour then considered the further question whether, apart from service as permitted by section 39, the adjudication application was in fact served. At this point, his Honour discussed the other two authorities referred to by the present applicant, Capper and Howslip, as well as Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd. Those authorities were to the effect that – whether a facultative regime had been complied with or not – if a document has actually been received and come to the attention of the person to be served with it, then there has been actual service, provision and receipt. His Honour noted that the documents read by the addressees on 23 and 26 August unambiguously informed them about the location of other documents which were part of their adjudication applications. But his Honour concluded that the applications had not been served.
- Capper involved section 6(2) of the Sale of Land Act 1970 (WA) which sought to ensure that contracts of a certain kind could not be determined or rescinded by the vendor for default by the purchaser unless notice in writing of the alleged default had been “served” upon the purchaser and the purchaser had been given a certain period of time to remedy the breach. The High Court described the provision as a “protective” one and construed its service requirement in that context.
- The contract between vendor and purchaser allowed for service of a default notice personally or “by posting it to the party at the party’s address specified in the contract”. Section 76 of the Acts Interpretation Act 1984 (WA) provided for service by post in accordance with section 75(1), which in turn provided that service by post would be deemed to be effected “by properly addressing and posting (by pre-paid post) the document as a letter to the last known address of the person to the served, and, unless the contrary is proved, to have been effected at the time when the letter would have been delivered in the ordinary course of post”. An issue arose as to whether the default notice had been served where the default notice itself was not delivered to the purchaser. Rather, the purchaser received a note from the post office stating that an article (the letter containing the notice) awaited collection.
- The High Court said at 351 – 352 (citations omitted, my emphasis):
“… Where a statutory provision, such a s 6, requires a document to be “served”, the statutory command is ordinarily perceived as requiring the contents of the document to be delivered to the person to be served. However, unless the statute says so, a document may be “served” although it is not personally served. Thus, it may be served by posting to the person required to be served. In many statutory contexts, a document may also be “served” when it is brought to the notice of the person who has to be served. At all events, it will be “served” in such contexts if the efforts of the person who is required to serve the document had resulted in the person to be served becoming aware of the contents of the document …
In its ordinary and natural meaning, therefore, s 6 of the Act requires service in fact of the notice “requiring the purchaser to remedy the breach”.
However in Western Australia, as elsewhere in Australia, the Legislature by enacting ss 75 and 76 of the 1984 Act has extended the meaning of the term “serve”. In cases falling within the provisions of those sections, a document may be served although it is not in fact received by the person who has to be served. But the provisions of ss 75 and 76 of the 1984 Act do not assist the vendor in this case. The purchaser proved that the default notice was not delivered to his “last known address”.”
- The question in Howslip was whether a summons for an order setting aside a statutory demand had been duly served. It had been served at a document exchange box. Young J held that service through the document exchange box was not good service. But that was not the ultimate question. The ultimate question was whether the document was received by the addressee within 21 days. In Young J’s view, if it was, then it did not matter how it got to the addressee: the addressee will have been served within time.
- Evidentially, to resist this application, Mr Henning had to be able to prove that he had “given” – that is, brought to the notice of – a copy of his adjudication application to Equinox.
- Mr Henning did not personally deliver the notice to any of Equinox’s relevant addresses. Instead, he posted it as above.
- Under section 39 of the Acts Interpretation Act 1954, Mr Henning could “give” a copy of his adjudication application to Equinox by posting it to one of the addresses nominated in the section. In other words, he could bring a copy of his adjudication application to the notice of Equinox by posting it to the company. But for the purposes of resisting this application, he had to prove that the copy had been so brought to their notice. Had it been sent by registered post Mr Henning may have been in a position to so prove. But he did not. Thus, he had to rely upon section 39A of the Acts Interpretation Act to prove that he had “given” a copy of his adjudication application on Equinox, even though he had no direct proof that it had been brought to their attention.
- Section 39A(1)(a) of the Acts Interpretation Act sets out the steps he had to take to rely upon the deeming effect of that legislation (in section 39A(1)(b)).
- If in fact Mr Henning took all the steps necessary to “give” to, or serve upon, Equinox the copy of the application for adjudication by posting, as per sections 39 and 39A of the Acts Interpretation Act, it would have been such a simple thing for those steps to have been set out in Mr Henning’s affidavit. But they were not.
- Instead, as above, the affidavit stated that he attended at the post office “in order to post” the adjudication application to Equinox and annexed a poor-quality photocopy of a photograph without further explanation. That meant that I had to determine, as the first point, whether I could extract, from Mr Henning’s affidavit, sufficient evidence of compliance with sections 39 or 39A of the Acts Interpretation Act.
Authorities about evidence of having “given” or “served” a document by post
- The decision of Daubney J in Grant Thornton (Qld) Pty Ltd v Green Global Technologies Ltd  QSC 262 (Grant Thornton v Green Global) about what is required to prove service by post has been referred to many times – although not in the context of security of payment legislation.
- Grant Thornton v Green Global, and the decisions which apply it, explain that the basic requirements of proof of service by post include evidence that the relevant documents have been placed in an envelope which is properly addressed, pre-paid, and posted as a letter. These requirements are reflected in section 39A of the Acts Interpretation Act.
- For example, after referring to Grant Thornton v Green Global, Barrett J said in Brown v Bluestone Property Services Pty Ltd  NSWSC 869 at  –  (my emphasis) –
“In order to prove service by post, it is necessary that the evidence of one or more witnesses establish a number of core and indispensable matters: that the document said to have been served by posting of it to a given address was placed inside an envelope, that the envelope had that address written or typed on its face, that a postage stamp or franking of the necessary amount was affixed to the envelope and that the envelope so addressed and stamped or franked was physically deposited in the post either at a post office or by being dropped into a post box for the reception of mail articles.
The plaintiffs have not proved these things. The evidence says nothing about an envelope or the placing of anything into an envelope (in particular, the letter dated 26 February 2010 and the documents listed in it). The evidence says nothing about the writing or typing of a name and address on the face of any envelope or about any stamp or franking. No one deposes to having handed over a stamped and addressed envelope at a post office or deposited it into a post box for the reception of mail articles.”
- The document to be served in that case was a statutory demand. Service of a statutory demand is an essential element in the creation of the presumption of insolvency for the purpose of winding up proceedings under section 459A of the Corporations Act.
- The defendant’s registered office at the relevant time was “Lane & Associates, Suite G04, 282 Oxford Street, Bondi Junction 2022”. The plaintiffs submitted that the demand had been served because they had posted it to that address, relying on section 109X of the Corporations Act. The defendant relied upon evidence of persons connected with it to the effect that they were not aware of the statutory demand until the originating process in the winding up proceedings was served upon them.
- The plaintiff relied upon an affidavit of its solicitor, Mr Gutierrez of Burkett & Taylor Lawyers, which was in the following terms –
“On 1 March 2010 a letter enclosing a statutory demand was forwarded by mail to the Defendant at its registered office Suite G04, 282 Oxford Street, Bondi Junction 2022. A copy of this letter is annexed hereto and marked with the letter ‘A’.
I enclose a copy of the Burkett & Taylor Lawyers outgoing mail register for 1 March 2010. A copy of which is annexed hereto and marked with the letter ‘B’.”
- Annexure A included a copy of a letter dated 26 February 2010, addressed to the defendant at “Suite G04, 282 Oxford Street, Bondi Junction 2022 – without a reference to “Lane and Associates”. The letter referred to nine enclosures, one of which was the statutory demand. Annexure B was copy of a handwritten sheet headed “Outgoing Mail” which contained an entry “1/3/10 “Babcock”, “Bluestone – Stat Demand” and “Post”.
- Barrett J reached the conclusion that there had not been sufficient proof of service on the basis that, inter alia, there was only hearsay evidence before him that the letter had been posted. His Honour said at  –  (my emphasis) –
“Mr Gutierrez’s statement in his affidavit that the letter a copy of which is the annexure “A” “was forwarded by mail to the Defendant” at the address stated is not a statement of something that he himself did or saw. He does not depose that he posted any letter or that he saw someone else post any letter. The only available conclusion is that someone else told Mr Gutierrez that they had posted a letter, which causes his statement regarding posting to be evidence of a previous representation by another person of the fact of posting and therefore inadmissible under s 59 of the Evidence Act 1995 to prove posting.
The several deficiencies in the plaintiffs’ evidence, coupled with the evidence of the defendant’s witnesses about not being aware of and having no record of the receipt of any statutory demand dated 18 February 2010 until after these proceedings were commenced on 1 June 2010, lead to the conclusion that service of any such statutory demand on the defendant is not proved in these proceedings.”
- Grant Thornton v Green Global was concerned with service of a statutory demand also. The applicant contended that service of the statutory demand and supporting affidavit had occurred by posting it, by prepaid ordinary post, to the respondent’s registered office – a firm of accountants at Robina. The respondent disputed having received it. It relied upon evidence of its accountant which outlined the way in which the accounting firm received mail. The accountant gave evidence about the firm’s internal business systems, by which a dedicated member of staff collected mail from the letter boxes every day; opened it; and gave it to him personally. The accountant said that when documents were received in relation to a company’s affairs, he ensured that the documents were brought to the attention of the company’s relevant principal officer. He went through the specific procedure in place for statutory demands. He stated that from his memory and the records of the company, he was able to state that no statutory demand was ever received.
- Daubney J noted that, whilst the accountant’s evidence went to the non-receipt of the statutory demand, there was a dichotomy between delivery and non-receipt. His Honour also focused on the requirements of proof of delivery by post. His Honour said (my emphasis) –
The affidavit of [the respondent’s accountant] goes to the non-receipt of the statutory demand. However, the authorities which analyse the dichotomy between delivery, which is statutorily deemed to occur consequent upon the posting of an article for service (in reliance on section 109X of the Corporations Act), and non-receipt of that article make it clear that once it is proved that a document is sent by post the statutory presumption of service can be overcome by proof of non-delivery as opposed to mere assertion of non-receipt.
Cases of non-delivery include those in which it is able to be proved than an envelope has been returned to the serving party and marked: “Return to sender” …
In the present case … the applicant contends that a statutory demand was served on the respondent by post. It is unnecessary for present purposes for me to make any final decision as to whether [the accountant’s] affidavit is sufficient evidence of non-delivery as opposed to non-receipt because, the challenge to service by post having squarely been raised on the material, the anterior question, namely, whether service by post had been proved by the applicant, came sharply into focus …
In that regard the only evidence of proof of the service of the statutory demand by post is contained in an affidavit of service by a solicitor within the office of the applicant’s solicitors, Mr Edgecombe. Relevantly Mr Edgecombe deposes:
“I did on the 13th of March 2009 cause a letter dated 13 March 2009 enclosing the Creditor’s Statutory Demand for Payment of Debt dated 12 March 2009 and an Affidavit of Debt of [X] sworn on the 12th of March 2009 to be forwarded by prepaid post, pursuant to the provisions of the Corporations Act 2001, to the registered office of Green Global Technologies Limited …”
- His Honour was satisfied that the registered office address was correct. But the question was whether the evidence of Mr Edgecombe was sufficient evidence of proof of posting.
- Daubney J considered the decision of Barrett J in Pearlburst Pty Ltd v Summers Resort Group Pty Ltd  NSWSC 1126, in which Barrett J stated (by reference to the decision of Debelle J in Dwyer v Canon Australia Pty Ltd  SASC 100 at ) that, in order to establish service by post upon a company is it necessary to prove that the letter was –
- Properly addressed;
- Posted as a letter; and
- Sent to the registered office of the company.
- To like effect were the observations of Brereton J in Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd  NSWSC 1216 at  (concerning proof of service of a statement of claim), that proof of service by post required, at least –
- Proof that the envelope bore the correct name and address;
- Proof that the envelope contained the relevant document to be served;
- Proof that the envelope bore the correct cost of postage and;
- Proof that the envelope was placed in the post.
- In the case before Brereton J there was no direct evidence about what appeared on the face of the envelope. Indeed, there was no direct evidence of the existence of any envelope. While it was said in evidence that the letter was sent by pre-post, there was no explicit statement that the letter and documents enclosed with it were put into any envelope. There was no evidence of the amount or value of any stamp or franking affixed to any such envelope and there was no direct evidence that anyone lodged any stamped or franked envelope (and contents) at any post office or in any post box. Because of the unsatisfactory state of the evidence of service of the Statement of Claim, and for other reasons, Brereton J declined to enter default judgment without notice to the defendant.
- There was no evidence before Daubney J of the processes within the applicant’s solicitor’s office which would give his Honour any proper basis for concluding that the posting of the documents in an envelope addressed to the registered office of the respondent company actually occurred. His Honour found that service of the statutory demand by post had not been proved.
- In Deputy Commission of Taxation, in the matter of ABW Design and Construction Pty Ltd v ABW Design and Construction Pty Ltd  FCA 346, Logan J had to consider whether there was proof of service of a statutory demand by the Commissioner of Taxation. The Commissioner relied upon section 109X of the Corporations Act. He purported to serve a statutory demand on ABW by post to the company’s registered office. The registered office included a post code. The post code was obscured on the envelope containing the statutory demand. His Honour found that the letter was not properly addressed.
- It is worth noting the detail of the evidence before his Honour. It included evidence from a public servant who stated that, on a certain date, she did the following:
- (a)Placed the statutory demand, signed by the Deputy Commissioner of Taxation, together with an affidavit, into an envelope and sealed that envelope;
- (b)Addressed the envelope in her handwriting as follows –
ABW Design & Construction Pty Ltd
Suite 9 Level 1, 1990 Logan Road
Upper Mount Gravatt QLD 4122;
- (c)Affixed a stamp to the value of 60 cents to the front of the envelope;
- (d)Posted the envelope by placing it in the Australia Post Mailbox located at the Australia Post Office, Sturt Street, Townsville at 2.09 pm.
- The public servant made a photocopy of the obverse of the envelope containing the statutory demand and the accompanying affidavit as postage stamped as addressed prior to posting. A good quality copy of that photograph was annexed to the public servant’s affidavit. The copy disclosed that the return address had been ruled through (leaving the letter bereft of a return address); and the post code, and to a lesser extent, the street name, were partially obscured by a “private and confidential” stamp.
- In terms of compliance with section 109X of the Corporations Act, his Honour had to consider whether the document had been posted to the company’s registered office. His Honour found that it had not been because the post code had been obscured. His Honour said:
“ Materially, s 142 of the Corporations Act requires a company to have a registered office in “this jurisdiction” … The term “registered office” is not separately defined for the purposes of s 28A of the Acts Interpretation Act 1901 (Cth) [which is largely in the same terms as section 39 of the State Act] but in context and for an Australian registered body corporate it is necessarily a reference to the registered office of that body corporate under Australian law. For present purposes, that is the same address as that registered for the purposes of s 142 of the Corporations Act. Inferentially, from the reference in s 142(3) of the Corporations Act to a change of address of a company’s registered office, a registered office must be an “address”. In respect of a registered office, s 100 of the Corporations Act requires that the specification in a notice to ASIC of a company’s registered office or change of such office be the “full address, or the full new address, as the case requires, of the relevant office including, where applicable, the number of the room and of the floor or level of the building on which the office is situated”. In relation to whether a post code must be included, the presence of the adjective, “full” may be significant, if not determinative but it is unnecessary to decide this. It is enough that, as a matter of construction and having regard to s 100 and s 142 in particular, the Corporations Act does not forbid the inclusion of a post code in the address recorded in the register as the registered office of a company.”
- His Honour was referred to authorities which took different views as to whether or not a post code was part of an address and concluded that, applying the language of the Acts Interpretation Act and section 109X of the Corporations Act, whatever may be the case with other corporate registrations, the registered office of ABW included a post code. His Honour held that the obscuring of the post code on the envelope meant that its contents had not been sent to the registered office of ABW. In his Honour’s view, “properly addressed” meant, insofar as a corporation is concerned, addressed in a manner authorised by law.
- His Honour also considered the matter as if obscuring the post code were immaterial. His Honour observed that the Commissioner led no evidence as to when the letter would have been delivered in the ordinary course of post to ABW’s address. His Honour anticipated that such evidence would be available from an officer of Australia Post by reference to its delivery standards and performance against those standards. His Honour could not take judicial notice of such a matter – it was a question of fact to be proved in evidence or via presumption (see White J in Scope Data Systems Pty Ltd v Goman as Representative of the Partnership BDO Nelson Parkhill (2007) 70 NSWLR 176 at ). Having regard to other evidence, his Honour was satisfied on the balance of probabilities that the envelope was not delivered.
- I appreciated that I was concerned with the “giving” of a document in a context different from the statutory demand/taxation context. I considered the decision of Fraser JA in Morel v Bank of Queensland Limited  QCA 207 (Morel) in which his Honour distinguished Grant Thornton v Green Global on the basis that the consequences of failing to comply with a statutory demand were very serious. In Morel, Fraser JA was dealing with an application to stay the execution of a default judgment pending appeal by Ms Morel against a decision not to set the default judgment aside. Ms Morel’s only arguable case was one based on there not being strict proof of service upon her by the bank, by post and email, in accordance with an order for substituted service. The order for substituted service provided for service by email to a certain email address and by “posting the documents by pre-paid registered post” to a certain address.
- Proof of service was provided by way of an affidavit from the bank’s solicitor that she “caused [the relevant documents] to be sent by registered post to the defendant” at the correct address. It was submitted that it was insufficient for the solicitor to swear that she caused the documents to be sent – further details of the processes by which the material was sent was required. Also, it was argued, there was no direct evidence of the address on the envelope or that the correct postage was affixed to the envelope. His Honour noted that the arguments were based on Grant Thornton v Green Global which he distinguished as mentioned above and continued:
“… No decision has been cited, to the effect that the form of the affidavit of service in the case of a default judgment used in this case is inadequate in any respect. As to the particular criticisms, my provisional view is that an affidavit by a solicitor that she caused the item to be sent by registered post is sufficient proof that it was sent by registered post. As to the address on the envelope, the affidavit referred to enclosing the sealed claim and statement of claim and a copy of the order in what she sent by registered post to the address identified both in the body of the affidavit and the exhibit. And as to the correct postage being affixed, to swear that something is caused to be sent by registered post to the defendant does seem to me, provisionally, to identify that the correct postage was affixed.”
- His Honour was not prepared to express any final opinion but considered the applicant’s prospects of success on appeal to be poor.
- Ms Morel later applied unsuccessfully for an extension of time within which to appeal. On that application, her argument about service was disposed of by the Court of Appeal noting that the order for substituted service merely required that the documents be emailed to her and posted to her at a certain postal address. Those things had occurred and that was deemed “good and sufficient service”.
- I looked for cases involving issues about the giving or serving of a document in BIF Act litigation or similar. I struggled to find much of assistance. Most of the cases I found dealt with the issue of evidence of non-delivery versus evidence of non-receipt and whether there had been displacement of the statutory presumption of delivery, rather than with the sufficiency of evidence of giving by post.
- Of some limited relevance was CMF Projects Pty Ltd v Masic Pty Ltd & Ors  QSC 209, in which Daubney J held that mailing the adjudicator’s notice of acceptance to the post box address of the respondent to a payment claim was not service in accordance with either section 109X of the Corporations Act or section 39 of the Acts Interpretation Act.
- Of greater assistance was Emag Constructions Pty Limited v Highrise Concrete Contractors (Aust) Pty Limited  NSWSC 903 especially for its statements about the need for service in this context to be strictly proved. An important issue in that case was whether, and if so when, there had been service of an adjudication application under the Building and Construction Industry Security of Payment Act 1999.
- Highrise served a payment claim for about $125,000 on Emag. Emag served a payment schedule on Highrise reducing the amount claimed to $nil. The payment schedule was served under cover of a letter from solicitors (Gray & Perkins) who advised Highrise that they acted for Emag. A week or so after receiving the payment schedule, Mr Lorimer of Highrise spoke to Mr Hodges of Gray & Perkins. The content of their conversation was a closely contested factual issue. Mr Lorimer said that Mr Hodges said he could “of course” accept service of the application for Emag. Mr Hodges said he told Mr Lorimer that he did not have instructions to accept service. On the same day as their conversation, Mr Lorimer sent a facsimile to Gray & Perkins which said, “… This will serve to confirm that you act on behalf of EMAG and as such will accept notices served on this matter. If you believe to the contrary, please advise by close of business 3 June 2003 by fax to Highrise …”. Emag accepted that the facsimile was received but it was never located at Gray & Perkins’ offices. On 3 June 2003, the adjudication application and accompanying documents were delivered to Gray & Perkins. The adjudicator found that the adjudication application had been properly served, including because Gray & Perkins did not dispute the content of the facsimile purporting to confirm that Gray & Perkins would accept notices served in the matter.
- Before Einstein J, Mr Ghosn, a director and principal of Emag, said he did not instruct Gray & Perkins to accept service of the adjudication application, which was not otherwise served upon Emag.
- On the question of the adjudicator’s jurisdiction, Einstein J referred to section 31 of the New South Wales Act, “Services of Notices”. His Honour said (my emphasis):
“The relevant provisions of the Act
 Plainly enough the whole of the rationale underpinning the procedures laid down by the Act is directed at providing a quick and efficient set of procedures permitting recovery of progress payments and the quick resolution of disputes in that regard. Time limits under the Act are strict. The consequences of not complying with the stipulated time limits can be significant. Counsel for the plaintiff has given an example … [of a decision] where a failure to comply with a time limitation under the Act resulted in a successful $13 million summary judgment application.
 An essential parameter forming part of Part 3, Division 2 “Adjudication of disputes” is the requirement to be found in section 17(5) that “a copy of an adjudication application must be served on the respondent concerned” …
 In relation to situations involving the curial process, under the general law the existence of the jurisdiction of a court is, of course, dependent on service of its processes: John Russell & Co Limiter v Cayzer (1916) 2 Appeal Cases 298 at 302. In curial process circumstances, service, apart from being fundamental to the jurisdiction of the court, is also an essential requirement of natural justice.
 Service being affected in accordance with the Act is critical as it governs the commencement of the time limitations following such service. The consequence of non-compliance with the time limitation periods is harsh. As was submitted to the court by counsel for the plaintiff, the Act exhibits “zero tolerance” for delay. To borrow a phrase from the world of contract, and in particular, conveyancing, in a real sense time is of the essence.
 Although the Act does not expressly provide for this, it seems to me that, in the absence of having received an adjudication response from a respondent, in order to determine whether an adjudicator has jurisdiction to determine an adjudication application, the adjudicator must be satisfied as to when and how service of an adjudication application has taken place. This must surely be inherent as part of the obviously highly significant need for any tribunal to be satisfied with the formal requirements laid down by the relevant legislation as necessary to be complied with as a condition precedent to the tribunal being permitted to proceed to exercise a jurisdiction or power conferred upon the tribunal by relevant legislation.”
- Emag argued that strict compliance with the service requirements of the Act was necessary and that the Court should find that there had been no service effected.
- Einstein J accepted the evidence of Mr Hodges that he had not indicated to Highrise that Gray & Perkins had instructions to accept service of the adjudication application. His Honour referred to the significance for a claimant of strict proof of service, at , my emphasis:
“… The present is an example of just how important it is to concentrate on procedures. But also throws up the high significance in terms of the Act in a claimant that service within the meaning of the Act can be strictly proved to have taken place. The whole of the stepped procedures being dependent upon compliance with rigid timelines, each of the formal requirements stipulated for by the Act must be complied with to the letter.”
- His Honour found that there had been no service as required. Emag’s solicitors had no actual or ostensible authority to accept service of the application on Emag’s behalf. The adjudicator’s determination was therefore vitiated.
- His Honour emphasised again the need for strict proof of service in the concluding paragraph of his judgment (, my emphasis):
“… The service provisions of the Act require to be complied with in terms. Prudence dictates that those responsible for complying with the service provisions take steps to be in a position to strictly prove service in the usual way … The Act here under consideration simply proceeds by requiring particular steps to be taken by the parties and by the adjudicator and proof of strict compliance with the Act is necessary for the achievement of quick and efficient recovery of progress payments and resolution of disputes in that regard.”
- The decision of the Court of Appeal in Niclin reflected similar considerations. Applegarth J (at ) referred to the leading authority on security of payments legislation, Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393, in which, at  McDougall J observed that the valuable rights granted to builders by security of payments legislation depended on a builder’s strict observance of the Act’s specifications as to time and other requirements. Applegarth J said (my emphasis) –
“ The comparable New South Wales legislation was described by Mc Dougall J in Chase Oyster Bar …
McDouglass J observed that the legislation gives “very valuable and commercially importance, advantages to builders and subcontractors”. At each stage of the regime for enforcement of the statutory right to progress payments, the legislation:
“… lays down clear specifications of time and other requirements to be observed. It is not difficult to understand that the availability of those rights should depend on strict observance of the statutory requirements that are involved in their creation.”
- In his supplementary submissions, the applicant submitted that Mr Henning’s failure to include the applicant’s full address on the envelope he allegedly posted meant that it was not “properly addressed”, referring to Oakley (A Partnership) v Asset HQ Australia Pty Ltd  VSC 98, the ABW Design case already discussed and Chen v the College of Building Ltd  ACTSC 19.
- In Oakley, an envelope containing a statutory demand was incorrectly addressed to the registered office of the defendant. Instead of it being addressed to Level 6, 1 Pacific Highway, North Sydney, it was addressed to Level 6, Pacific Way, North Sydney. It was held by the judicial registrar that the plaintiff could not rely upon the deeming provisions as to service because strict compliance with them was required – referring to ABW and Chen.
- In Chen, errors (by way of omission) in the address on an envelope containing a statutory demand were considered sufficient to require findings that the statutory demand was not posted to the registered office of the defendant nor was it “properly addressed”.
- The first respondent submitted, in his supplementary submissions, that section 39 of the Acts Interpretation Act permitted the first respondent to post the application for adjudication to Equinox’s “principal office”, as revealed by the QBCC search. He also submitted that, for the purposes of the BIF Act, it was “preferred” that the first respondent send the adjudication application to Equinox’s “principal office” as per the QBCC records, rather than its registered office, because this was not a proceeding under the Corporations Act 2001.
Discussion and conclusion
- Although Equinox received Mr Henning’s February 2020 payment claim, it did not give him a payment schedule in response to his payment claim. Section 77 of the BIF Act therefore applied and Equinox was liable to pay the amount claimed under the payment claim on the due date for the progress payment to which the payment claim related.
- Equinox not having paid that amount, Mr Henning was entitled to apply for adjudication of the payment claim under section 78(2)(b) of the BIF Act. An application for adjudication is dealt with in section 79 of the BIF Act. As I have already noted, under section 79(3), a copy of the adjudication application must be given to the respondent or the adjudicator has no jurisdiction to adjudicate the payment claim.
- The adjudication decision (exhibit JH1 to Mr Henning’s affidavit) records that no payment schedule was issued by Equinox. It also records that, accordingly, under section 82(2), Equinox was not permitted to provide an adjudication response. I note that the adjudicator stated that he was advised by Mr Henning (in response to a request for further information) that the adjudication application had been served upon the respondent on 9 March 2020. It seems that the adjudicator did not require any further proof of service. I note thought the adjudicator’s observation at paragraph 18 of his decision that the respondent (Equinox) had not “acknowledged requests for further submissions”, one of which concerned service (see paragraph 67 of the adjudicator’s decision).
- The consequences of not complying with time limitations under the BIF Act may be significant (as explained in Emag; cf Morel). Service of the adjudication application is critical to the jurisdiction of the adjudicator (Niclin).
- In my view, it is incumbent upon a claimant in an adjudication application to strictly prove that a copy of the application has been given to the respondent to it – first to the adjudicator, and later, if necessary, to the court (cf Emag, Chase Oyster Bar).
- In my view, it is necessary for a claimant to be in a position to strictly prove service so that there can be, consistently with the aims of the BIF Act, quick and efficient recovery of progress payments and the resolution of disputes by way of adjudication.
- Mr Henning was not in a position to prove that he had “given”, or brought his adjudication application to the notice of Equinox, other than by relying upon sections 39 and 39A of the Acts Interpretation Act. It is not difficult to prove compliance with those provisions. All Mr Henning had to do was swear that he (i) put the adjudication application inside an envelope; (ii) properly addressed the envelope to either the head office, registered office or principal office of Equinox; (iii) pre-paid the postage of it; and (iv) posted it. But he did not expressly produce evidence covering those four matters.
- I considered whether I was nevertheless able to extract from his affidavit sufficient evidence that he posted a copy of the adjudication application to the applicant – relying on inferences and taking the most generous view of it that I possibly could.
- I was concerned that the address on the envelope was not in fact the address of Equinox’s registered office or its principal place of business at the relevant time according to the ASIC records (cf Deputy Commission of Taxation, in the matter of ABW Design and Construction Pty Ltd v ABW Design and Construction Pty Ltd). As I have discussed, the envelope was addressed to 56 Sanders Street, not 50 – 56 Sanders Street. However, the late evidence produced by the first respondent established that, according to the QBCC, Equinox’s “Business Address” as at 13 March 2020 was unit 22 50 Sanders Street. I was prepared to proceed on the basis that the envelope had been addressed to “a” “principal” office of Equinox, in accordance with section 39(1)(b) of the Acts Interpretation Act.
- But the first respondent’s affidavit said nothing about the way in which the postage was calculated or paid for, including the relevance of using a “POSTAGE PAID AUSTRALIA” envelope; or how the posting was effected (that is, by handing the letter over the counter to a staff member of Australia Post, or by placing it in red post box).
- Bearing in mind Fraser JA’s approach in Morel, if the only thing missing from the first respondent’s evidence in this regard was a statement that he actually handed over the letter to a staff member or put it into a post box, I might have been prepared to infer, from his statements in paragraph  of his affidavit, that he had done so, on the basis that it is reasonable to assume that a person will follow through on their stated intention (that is, he was at the post office “in order to”/intending to post the adjudication application to Equinox and he probably did so). But that was not the only thing missing from his evidence.
- The evidence did not explain whether he purchased the envelope, bearing the “POSTAGE PAID AUSTRALIA” marking, during his visit to the Kallangur Post Office on 9 March 2020; or whether it was an envelope he already had. The evidence did not explain how postage paid envelopes were to be used, especially when it came to paying for postage of the items contained in them. Nor did the evidence deal with whether the first respondent properly understood the way in which they were to be used and in fact properly used the envelope containing the copy of the adjudication application that way.
- The omissions from the first respondent’s evidence caused me to conclude that there was insufficient proof that the adjudication application had been “given” by Mr Henning to Equinox. In other words, Mr Henning was not able to rely upon sections 39 or 39A to prove that service of a copy of his adjudication application had been effected. It follows that it is appropriate to make the declaration.
- Because of that conclusion, I do not need to concern myself with whether there was any evidence contrary to the presumption that the letter was delivered in the ordinary course of post, but frankly, having regard to the poor state of the evidence assembled by the applicant, had the matter come to that, it is far from clear that the applicant would have succeeded on that point.
- As to the first respondent’s rule 5 argument, I do not consider it appropriate to apply rule 5 in the way contended for. There were unexplained delays on both sides but more significantly, to so apply the rule would not do justice between the parties.
- On the questions of costs, it is well settled that, in the absence of special circumstances, a court will exercise its discretion to award costs to the successful party. In my view, special circumstances exist here. The parties sought to have this matter determined “on the papers”. The Court required their presence. They made relatively brief oral submissions, each relying on deficient evidence. At my request, the parties provided further written submissions on a point which they had each overlooked (about the address on the envelope). I received very little assistance from the applicant on the matter upon which this decision turned – that is the critical need for a claimant to strictly prove service of an adjudication application to enable them to take advantage of the adjudication regime under the BIF Act. Also, as I have noted, the applicant’s evidence was too deficient to provide much support for its arguments about non-receipt or non-delivery. For those reasons, I considered it just to make no order as to costs.
 Section 21(5) of the 2004 Act stated: “A copy of an adjudication application must be served upon the respondent”.
 There was no challenge to that finding at the appeal from my decision. The appeal against my decision was dismissed: Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd  2 Qd R 190.
 The second respondent is the adjudicator, who took no active role in these proceedings.
 Under the BIF Act, as soon as practicable after being given a copy of a decision by an adjudicator, but no later than 5 business days after being given the decision, the registrar must give the claimant an adjudication certificate (s 91). If the adjudicated amount is not paid, a claimant may file the adjudication certificate as a judgment for a debt, which may be enforced in a court of competent jurisdiction (s 93).
 The original of Mr Shen’s affidavit was not on the file (although it seems it was filed in the registry). I was handed a photocopy of it and the parties were content for me to proceed on the basis that it was a reproduction of the original.
- Published Case Name:
Equinox Construction Pty Ltd v Henning & Anor
- Shortened Case Name:
Equinox Construction Pty Ltd v Henning
 QSC 223
31 Aug 2021
- Selected for Reporting: