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Demex Pty Ltd v John Holland Pty Ltd[2022] QSC 259

Reported at (2022) 12 QR 438

Demex Pty Ltd v John Holland Pty Ltd[2022] QSC 259

Reported at (2022) 12 QR 438

SUPREME COURT OF QUEENSLAND

CITATION:

Demex Pty Ltd v John Holland Pty Ltd [2022] QSC 259

PARTIES:

DEMEX PTY LTD (ACN 635 279 640)

(Applicant)

v

JOHN HOLLAND PTY LTD (ACN 004 282 268)

(Respondent)

FILE NO/S:

BS2164 of 2022

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2022

JUDGE:

Crowley J

ORDER:

  1. The Application is dismissed
  2. The Applicant is to pay the Respondent’s costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIMS – where the parties entered into a construction contract – where the Applicant sent a payment claim to the Respondent – where the payment claim was sent by email on a Saturday – where the Respondent opened the email the following Monday – where the Respondent had 10 business days after the payment claim was served to issue a payment schedule – where the Respondent issued the payment schedule more than 10 business days after the email was sent, but less than 10 business days after the email was opened – where the Applicant seeks payment from the Respondent of the full amount of the payment claim – whether service of the payment claim was effected when the Respondent received the email attaching the payment claim – whether the Respondent was required to be aware of the receipt of the emailed payment claim – whether the Applicant had proven that the email was received by the Respondent at or about the time it was sent – whether the Court can take judicial notice of the fact emails are a means of instantaneous electronic communication

Building and Construction Industry Security of Payment Act 1999 (NSW), s 3, s 3(1), s 3(2), s 3(3)(a), s 3(3)(b), s 4(1), s 7, s 11(2), s 13, s 13(1), s 13(1A), s 13(1B), s 14, s 14(4), s 14(4)(a), s 14(4)(b)(ii), s 15, s 15(2)(a)(i), s 15(2)(b), s 31, s 31(1), s 31(1)(b), s 31(1)(d), s 31(2), s 31(4), s 34, s 34(2)(a)

Civil Proceedings Act 2011 (Qld), s 58

Electronic Transactions Act 2000 (NSW), s 13A, s 13A(1), s 13A(1)(a), s 13A(2)

Evidence Act 1995 (NSW) s 161, s 161(1)(e)

Interpretation Act 1987 (NSW), s 33, s 36, s 36(1)

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 11(1)(c)

All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289, cited

Austar Finance Group Pty Ltd v Campbell (2007) 215 FLR 464; [2007] NSWSC 1493, considered

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36, cited

Bauen Constructions Pty Ltd v Sky General Services Pty Ltd & Anor [2012] NSWSC 1123, cited

BCS Infrastructure Support Pty Ltd v Jones Lang Lasalle (NSW) Pty Ltd [2020] VSC 739, distinguished

Bevan v Western Australia (2010) 202 A Crim R 27; [2010] WASCA 101, considered

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, applied

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190, cited

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7, cited

Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259, applied

H Lundbeck A/S v Sandoz Pty Ltd (2022) 399 ALR 184; [2022] HCA 4, cited

Holland v Jones (1917) 23 CLR 149; [1017] HCA 26, cited

Masters Home Improvement Pty Ltd v North East Solutions Pty Ltd (2017) 372 ALR 440; [2017] VSCA 88, applied

Mehesz v Redman (No 2) (1980) 26 SASR 244, considered

Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd (2010) 30 VR 141; [2010] VSC 199, distinguished

Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 4) (2009) 255 ALR 632; [2009] FCA 522, cited

Porter v Kolodzeij [1962] VR 75, considered

Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52, cited

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4, cited

SGR Pastoral v Christensen [2019] QSC 229, applied

Simic v New South Wales Land and Housing Corp (2016) 260 CLR 85; [2016] HCA 47, cited

COUNSEL:

J McKenna KC, with J Hastie, for the Applicant

G Sirtes SC, with M Hickey and L Tassell, for the Respondent

SOLICITORS:

Shand Taylor Lawyers for the Applicant

HWL Ebsworth Lawyers for the Respondent

Introduction

  1. [1]
    This application concerns disputes about the service by the Applicant of a payment claim, and the provision by the Respondent of a payment schedule, under the statutory regime created by the Building and Construction Industry Security of Payment Act 1999 (NSW) (‘Payment Act’).
  2. [2]
    On or about 18 February 2021, the Applicant, Demex Pty Ltd (‘Demex’), entered into a construction contract with the Respondent, John Holland Pty Ltd (‘John Holland’), for the demolition of an old bridge located at Batemans Bay, New South Wales. The construction contract was in the form of what appears to be a John Holland ‘Standard Subcontract’.
  3. [3]
    Under the construction contract, and as entitled by the Payment Act, Demex, as a subcontractor, was permitted to submit progress payment claims to John Holland through the course of the demolition project. If such payment claims were accepted, John Holland was required to pay Demex the claimed amount. If John Holland considered some other, lesser amount was payable, John Holland could provide Demex with a payment schedule setting out the amount it contended was payable and the reasons why it considered the full amount claimed was not payable.[1]
  4. [4]
    Under s 14(4) of the Payment Act, a respondent served with a payment claim who wishes to provide a payment schedule must do so ‘within the time required by the relevant construction contract’ or ‘within 10 business days after the payment claim is served’.  The time for provision of a payment schedule under the contract here was ‘within 10 Business Days after receiving a Payment Claim’.[2] As I will further explain, there was no material difference between the time period stipulated by the Payment Act and that stipulated by the contract.
  5. [5]
    On Saturday, 25 September 2021, Demex sent a payment claim to John Holland by email claiming the amount of $5,395,54.59 (including GST) for work performed under the construction contract (‘Payment Claim’).
  6. [6]
    On 12 October 2021, John Holland issued a payment schedule (‘Payment Schedule’) in response to the Payment Claim. John Holland assessed Demex was entitled to be paid $1,175,641.95 (including GST).
  7. [7]
    On 20 October 2021, as required under the contract, Demex issued a tax invoice (‘Tax Invoice’) to John Holland for the amount of $1,175,641.95 (including GST) in respect of the Payment Claim.  The Tax Invoice stated that the ‘Tax Date’ for the purposes of the invoice was 27 September 2021, which was the Monday after the Payment Claim email had been sent by Demex.
  8. [8]
    On 25 October 2021, John Holland paid the Tax Invoice in full.
  9. [9]
    Demex now contends that the Payment Schedule was invalid as it was not provided within 10 business days after the Payment Claim was served.  This issue was raised with John Holland for the first time on 28 February 2022, when Demex served John Holland with a copy of the Originating Application by which this proceeding was commenced. By that application, Demex sought payment from John Holland of $5,395,54.59 (including GST), being the full amount of the Payment Claim.
  10. [10]
    Further, on 7 March 2022, Demex gave notice of its intention to suspend works, pursuant to s 15(2)(b) of the Payment Act, asserting John Holland’s alleged failure to provide the Payment Schedule within 10 business day of service of the Payment Claim, as required under the Payment Act.
  11. [11]
    As a consequence of the alleged failure to provide the Payment Schedule within the prescribed period, Demex contends John Holland became liable to pay the total amount claimed in the Payment Claim, in accordance with s 14(4) of the Payment Act, and that such an amount is now recoverable as a debt under s 15(2)(a)(i) of the Payment Act.
  12. [12]
    Because John Holland had already paid the Tax Invoice in full, on 17 March 2022, Demex filed an Amended Originating Application in which it now seeks payment from John Holland of a revised debt amount of $4,219,916.64 (including GST)  (‘Debt’), together with interest pursuant to s 11(2) of the Payment Act, or alternatively pursuant to s 58 of the Civil Proceedings Act 2011 (Qld).
  13. [13]
    John Holland disputes it is liable to pay the Debt claimed by Demex.
  14. [14]
    The principal argument put forward by John Holland is that it is not liable for the Debt because it did provide the Payment Schedule within the period of 10 business days, as required.
  15. [15]
    In the event that the Payment Schedule was not provided within time, John Holland further claims that it is not liable for the Debt as the Payment Claim submitted by Demex was invalid because it included impermissible claims that did not arise from the work undertaken under the contract.
  16. [16]
    Alternatively, John Holland contends that even if the Payment Claim was valid, Demex is not entitled to recover the Debt as it did not previously raise any dispute about the Payment Schedule. Instead, Demex issued the Tax Invoice for the reduced amount as set out in the Payment Schedule and received payment of the Tax Invoice in full. In those circumstances, John Hollands argues Demex ought not now be permitted to claim the Debt due to the asserted unpaid balance of the Payment Claim.
  17. [17]
    Finally, John Holland contends Demex is not entitled to recover the Debt because subsequent payments made by it to Demex under the construction contract mean the Debt as claimed cannot be proven.

Issues

  1. [18]
    The ultimate issue to be determined in this matter is whether Demex is entitled to recover the Debt.
  2. [19]
    The five subordinate issues that arise for consideration are:
  1. Did John Holland fail to provide a Payment Schedule within 10 business days after the Payment Claim was served, as required by s 14(4)(b)(ii) of the Payment Act?
  2. Was the Payment Claim a valid claim under the Payment Act?
  3. Is Demex now estopped from recovering the Debt because of its conduct? In particular, did Demex provide a warranty or representation to John Holland by issuing the Tax Invoice and subsequently receiving payment for part of the Payment Claim without raising any issue with respect to John Holland’s purported late issue of the Payment Schedule?
  4. Is Demex prevented from recovering the Debt because it engaged in misleading or deceptive conduct by its warranty or representation to John Holland, by issuing the Tax Invoice and subsequently receiving payment for part of the Payment Claim without raising any issue with respect to John Holland’s purported late issue of the Payment Schedule?
  5. Is Demex unable to recover the Debt as claimed because it has already been paid for some of the further items in the Payment Claim and therefore is unable to precisely quantify and prove the Debt?

Statutory Regime

  1. [20]
    The Payment Act is intended to promote and facilitate prompt payment of amounts due in respect of construction work and the quick and expeditious resolution of disputes in relation to payment.[3] The Payment Act creates a parallel regime, separate from the contract, for the prompt making of progress payments under a construction contract, without affecting the parties’ rights under the contract.[4]
  2. [21]
    The means by which the Payment Act ensures that a person is entitled to receive a progress payment is by granting a statutory entitlement to such payment, regardless of whether the relevant construction contract makes provision for progress payments.[5] The Payment Act does this by providing, inter alia, for: [6]
    1. (a)
      the making of a payment claim by the person claiming payment, and
    2. (b)
      the provision of a payment schedule by the person by whom the payment is payable.
  3. [22]
    Section 13 of the Payment Act deals with payment claims. It relevantly provides:

13 Payment claims

  1. (1)
    A person referred to in section 8 who is or who claims to be entitled to a progress payment (the claimant) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment.

(1A) A payment claim may be served on and from the last day of the named month in which the construction work was first carried out (or the related goods and services were first supplied) under the contract and on and from the last day of each subsequent named month.

(1B) However, if the construction contract concerned makes provision for an earlier date for the serving of a payment claim in any particular named month, the claim may be served on and from that date instead of on and from the last day of that month.

(1C) In the case of a construction contract that has been terminated, a payment claim may be served on and from the date of termination.

  1. (2)
    A payment claim—
  1. (a)
    must identify the construction work (or related goods and services) to which the progress payment relates, and
  1. (b)
    must indicate the amount of the progress payment that the claimant claims to be due (the claimed amount), and
  1. (c)
    must state that it is made under this Act.
  1. (3)
    The claimed amount may include any amount—
  1. (a)
    that the respondent is liable to pay the claimant under section 27(2A), or
  1. (b)
    that is held under the construction contract by the respondent and that the claimant claims is due for release.
  1. (4)
    A payment claim may be served only within—
  1. (a)
    the period determined by or in accordance with the terms of the construction contract, or
  1. (b)
    the period of 12 months after the construction work to which the claim relates was last carried out (or the related goods and services to which the claim relates were last supplied),

whichever is the later.

  1. (5)
    Except as otherwise provided for in the construction contract, a claimant may only serve one payment claim in any particular named month for construction work carried out or undertaken to be carried out (or for related goods and services supplied or undertaken to be supplied) in that month.
  1. (6)
    Subsection (5) does not prevent the claimant from—
  1. (a)
    serving a single payment claim in respect of more than one progress payment, or
  1. (b)
    including in a payment claim an amount that has been the subject of a previous claim, or
  1. (c)
    serving a payment claim in a particular named month for construction work carried out or undertaken to be carried out (or for related goods and services supplied or undertaken to be supplied) in a previous named month.

…

  1. [23]
    Section 14 deals with payment schedules. It provides:

14 Payment schedules

  1. (1)
    A person on whom a payment claim is served (the respondent) may reply to the claim by providing a payment schedule to the claimant.
  1. (2)
    A payment schedule—
  1. (a)
    must identify the payment claim to which it relates, and
  1. (b)
    must indicate the amount of the payment (if any) that the respondent proposes to make (the scheduled amount).
  1. (3)
    If the scheduled amount is less than the claimed amount, the schedule must indicate why the scheduled amount is less and (if it is less because the respondent is withholding payment for any reason) the respondent’s reasons for withholding payment.
  1. (4)
    If—
  1. (a)
    a claimant serves a payment claim on a respondent, and
  1. (b)
    the respondent does not provide a payment schedule to the claimant—
  1. (i)
    within the time required by the relevant construction contract, or
  1. (ii)
    within 10 business days after the payment claim is served,

whichever time expires earlier,

the respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates.

  1. [24]
    Section 15 provides for the consequences of not paying a claimant where no payment schedule has been provided. It provides:

15 Consequences of not paying claimant where no payment schedule

  1. (1)
    This section applies if the respondent—
  1. (a)
    becomes liable to pay the claimed amount to the claimant under section 14(4) as a consequence of having failed to provide a payment schedule to the claimant within the time allowed by that section, and
  1. (b)
    fails to pay the whole or any part of the claimed amount on or before the due date for the progress payment to which the payment claim relates.
  1. (2)
    In those circumstances, the claimant—
  1. (a)
    may—
  1. (i)
    recover the unpaid portion of the claimed amount from the respondent, as a debt due to the claimant, in any court of competent jurisdiction, or
  1. (ii)
    make an adjudication application under section 17(1)(b) in relation to the payment claim, and
  1. (b)
    may serve notice on the respondent of the claimant’s intention to suspend carrying out construction work (or to suspend supplying related goods and services) under the construction contract.
  1. (3)
    A notice referred to in subsection (2)(b) must state that it is made under this Act.
  1. (4)
    If the claimant commences proceedings under subsection (2)(a)(i) to recover the unpaid portion of the claimed amount from the respondent as a debt—
  1. (a)
    judgment in favour of the claimant is not to be given unless the court is satisfied of the existence of the circumstances referred to in subsection (1), and
  1. (b)
    the respondent is not, in those proceedings, entitled—
  1. (i)
    to bring any cross-claim against the claimant, or
  1. (ii)
    to raise any defence in relation to matters arising under the construction contract. The Supreme Court of Queensland is a court of competent jurisdiction.[7]
  1. [25]
    With respect to service of documents under the Payment Act, s 31 provides:

31    Service of documents

  1. (1)
    Any document that by or under this Act is authorised or required to be served on a person may be served on the person—
  1. (a)
    by delivering it to the person personally, or
  1. (b)
    by lodging it during normal office hours at the person’s ordinary place of business, or
  1. (c)
    by sending it by post addressed to the person’s ordinary place of business, or
  1. (d)
    by email to an email address specified by the person for the service of documents of that kind, or

(d1)   by any other method authorised by the regulations for the service of documents of that kind, or

  1. (e)
    in the case of service by a party to a construction contract on another party to the construction contract—in the manner that may be provided under the construction contract.
  1. (2)
    Service of a document that is sent to a person’s ordinary place of business, as referred to in subsection (1)(c), is taken to have been effected when the document is received at that place.
  1. (3)
    The provisions of this section are in addition to, and do not limit or exclude, the provisions of any other law with respect to the service of documents.
  1. (4)
    In this section—

document includes written notice or determination.

serve includes give, send or otherwise provide.

  1. [26]
    Section 4 of the Payment Act defines a number of terms. It includes the following definition of ‘business day’:

business day means any day other than—

  1. (a)
    a Saturday, Sunday or public holiday, or
  1. (b)
    27, 28, 29, 30 or 31 December.
  1. [27]
    Pursuant to s 7, the Payment Act applies to any construction contract, whether written or oral, or partly written and partly oral, and applies even if the contract is expressed to be governed by the law of a jurisdiction other than New South Wales in respect of construction work carried out in New South Wales.  Further, pursuant to s 34 of the Payment Act, the provisions of the Act have effect despite any provision to the contrary in any contract.
  2. [28]
    The scheme and operation of the statutory regime created by the Payment Act are clear. As the High Court stated in Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd:[8]

First, the respondent has an opportunity to reply to the payment claim by providing to the claimant a ‘payment schedule’. The payment schedule is to indicate the ‘scheduled amount’, being the amount of the payment (if any) that the Respondent proposes to make. The payment schedule is also to indicate the reasons for withholding payment if the scheduled amount is less than the claimed amount. If the respondent does not provide a payment schedule within time, the respondent becomes liable to pay the claimed amount to the claimant. If the respondent does not pay the whole or any part of the claimed amount (in circumstances where the respondent has not provided a payment schedule) or the whole or any part of the scheduled amount (in circumstances where the respondent has provided a payment schedule), the claimant can recover the unpaid portion from the respondent as a debt in a court of competent jurisdiction. In recovery proceedings for that unpaid portion, the respondent is not entitled to cross-claim against the claimant or to raise any defence in relation to matters arising under the construction contract.[9]

  1. [29]
    The Payment Act has been described as ‘draconian’ in its effect.[10]

Was the Payment Schedule served in time?

  1. [30]
    The answer to this first subordinate issue is critical to Demex’s application. If I am satisfied that the Payment Schedule was not served in time then, subject to John Holland’s other arguments, Demex will have established its entitlement to recover the Debt. On the other hand, if I am not satisfied, no such entitlement arises under the Payment Act and it will be unnecessary to consider the matter further.
  2. [31]
    To put the dispute between the parties into context, it is first necessary to note certain aspects of the construction contract.

Contract terms

  1. [32]
    The terms of the contract were set out in the main body of the document and further particularised or substituted by various schedules to the contract. Schedule A provided ‘Particulars’ of various terms and phrases. Schedule B provided for various ‘Special Conditions’, which were introduced by the schedule preamble:

In addition to and without limiting any other provision of the Subcontract, the Subcontractor must, and must ensure that any person under its control or direction, comply with the following obligations.

  1. [33]
    Clause 12.6 of the contract provided that Demex could submit a payment claim to John Holland on each ‘Reference Date’, within the time and by the method required by sch A. Schedule A stated the ‘Reference date’ was ‘…the 25th of each month’ and that payment claims ‘shall be submitted on or before the 25th of each month and must be sent to email address: [email protected]’ (‘BBB Accounts Email’).
  2. [34]
    Under cl 12.6(d), a payment claim was to ‘be delivered to the John Holland Project Manager or such other nominated person’. That person was Simon Armstrong, a Senior Contracts Administrator employed by John Holland and the acting Commercial Manager for the project.
  3. [35]
    Schedule B, special condition cl 70 provided that general cl 12.6 was to be ‘deleted and changed’ to the specific clause thereafter set out. The modified cl 12.6 relevantly provided:

…the Subcontractor may submit a Payment Claim to John Holland each month. The Subcontractor warrants to John Holland that all Payment Claims will:

…

  1. (d)
    be delivered to by email to email address: [email protected];

…

  1. [36]
    Clause 12.7 provided that John Holland would, within the time specified in sch A of receiving a valid payment claim, give a payment schedule to Demex. Under sch A, that period was ‘within 10 Business Days of receiving a Payment Claim’. The specified period for provision of a payment schedule under the contract was in effect the same period as the provided by s 14(4)(b)(ii) of the Payment Act.
  2. [37]
    Clause 1.1 defined ‘Business Day’ to mean ‘…any day except Saturdays, Sundays, public holidays in the State in which the Site is located and 27, 28, 29, 30 and 31 December’. The ‘Site’ was identified in sch A as Batemans Bay Bridge, Batemans Bay, New South Wales.
  3. [38]
    Clause 12.8 provided that John Holland was to pay Demex the amount set out in a payment schedule served by it within the period specified in sch A. Under sch A, payment was to be made ‘…within 20 Business Days of receiving the Payment Claim’.
  4. [39]
    Clause 17.8 provided, inter alia, that any notice to be given or served under, or arising out of, a provision of the contract was to be in writing and delivered by hand or sent by prepaid post. Clause 17.8(b) further provided that ‘a notice sent by post is taken to have been received at the time when, in due course of the post, it would have been delivered at the address to which it is sent.’
  5. [40]
    Schedule A further provided:

Further to Clause 17.8; notices can be issued via email when the email becomes capable of being retrieved by the addressee at the email address stated in this Schedule Of Particulars or last notified in writing to the party giving the notice.

  1. [41]
    The postal address and email addresses for the parties were then set out, with the relevant nominated email address for John Holland stated as:

All notices must be submitted via Aconex to Justin McCarthy [email protected] and CCed to Simon Armstrong [email protected]

  1. [42]
    Aconex is an electronic cloud-based document management system. The parties used Aconex throughout the project to exchange correspondence.
  2. [43]
    Clause 17.13 provided that, where a notice or instruction was to be given under the contract, it was to be in writing, signed by the party giving the notice and may be delivered by hand or sent by post to the address of the relevant party set out in sch A to the contract. Clause 17.13 further provided that:

A notice delivered by hand will be taken to have been received from the time it is delivered to or received at the nominated address of the party. A notice delivered by post (if sent and received in the same country as the Site is located) will be taken to have been received from the date when, in due course of the post, it would have been delivered at the address to which it is sent (or, otherwise, on the 3rd day after the date of posting, whichever is earlier).

  1. [44]
    The Payment Claim in issue here was served as an attachment to an email sent to John Holland by a Demex employee, Lachlan Green, Senior Contracts Administrator. Mr Green sent the email at 2:06 pm on Saturday, 25 September 2021. As required by the contract, it was sent to the BBB Accounts Email. It was also sent to Justin McCarthy, Senior Project Manager for John Holland, and also ‘cc’d’ to various persons at John Holland, including Simon Armstrong. The attached Payment Claim was accompanied by a covering letter addressed to Mr McCarthy, dated 25 September 2021, and supporting documents.
  2. [45]
    Clause 17.6 of the contract dealt with ‘Working Hours’. It provided:

Unless otherwise specified by John Holland, the hours of work applicable to the Works to be carried out at the Site are as specified in Schedule A.

  1. [46]
    Schedule A further provided:

The hours of work applicable to the Works to be carried out on Site are Mon to Fri: 0700 to 1800 as directed by JH. Sat: 0800 to 1300. Sun: No works to be performed without prior approval from John Holland

  1. [47]
    For the purposes of the contract, ‘Works’ was defined in cl 1.1 to mean:

…all things or tasks necessary for the Subcontractor to do to comply with its Subcontract obligations including the physical works (including Provisional Sum Work) which the Subcontractor must complete and handover to John Holland in accordance with the terms and conditions of this Subcontract such physical works being briefly described in Schedule A.

  1. [48]
    Schedule A further particularised ‘Works’ for the purposes of cl 1.1 as ‘Demolition of Existing Bridge, as described in Schedule-G, Item-1’. Schedule G, Item 1 detailed the works required to be performed by Demex, as subcontractor, for the demolition of the existing Batemans Bay Bridge. It also included at Item 1.5:

…

Working Hours

The Site working hours are:

Monday to Friday7:00am to 6:00pm

Saturday8:00am to 1:00pm

The Subcontractor must NOT undertake any work:

  1. a.
    Including the delivery, pick /drop off or maintenance of plant or equipment, delivery of materials, outside these working hours without the written permission of John Holland;
  1. b.
    Outside of normal working hours and on Saturdays, Sundays and Public Holidays without written permission of John Holland.

Out of Hours Work

Out of hours work will only be considered on a case by case basis. The Subcontractor must provide in writing a minimum 3 months prior to the proposed out of hours work to allow John Holland time to properly consult the community and gain approvals. A technical justification would be required to work out of hours and even then, may not be approved.

…

Submissions of the Parties

  1. [49]
    Demex contends the Payment Schedule was not provided by John Holland within 10 business days after the Payment Claim was served, as required by the Payment Act.
  2. [50]
    On Demex’s argument, the Payment Claim was served on Saturday, 25 September 2021, at or about the time the email was sent by Mr Green to the nominated BBB Accounts Email. Demex submits service by email was expressly permitted under s 31(1)(d) of the Payment Act and was also consistent with the terms of cl 12.6 and sch A of the contract. It says there was no requirement that a Payment Claim served by email could only be sent on a business day.
  3. [51]
    Demex further submits that it is not necessary for an email to be opened before it is taken to have been served. It argues that a document served by email is served at the time the email arrives at the email address to which it was sent, provided the email and attached documents were capable of being opened and read. It submits awareness of the email on the part of the recipient is not required.
  4. [52]
    Demex relies upon s 13A of the Electronic Transactions Act 2000 (NSW) (‘Electronic Transactions Act’), which provides:[11]

13A Time of receipt

  1. (1)
    For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication—
  1. (a)
    the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee, or
  1. (b)
    the time of receipt of the electronic communication at another electronic address of the addressee is the time when both—
  1. (i)
    the electronic communication has become capable of being retrieved by the addressee at that address, and
  1. (ii)
    the addressee has become aware that the electronic communication has been sent to that address.
  1. (2)
    For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.
  1. (3)
    Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 13B.
  1. [53]
    Demex submits that s 13A applied to the emailed Payment Claim as the parties did not otherwise agree by their contract as to the time of receipt of an electronic communication. In any event, even if they did otherwise agree, Demex further submits that eservice of the Payment Claim was in accordance with cl 17.8 of the contract when read with sch A, in respect of the service of notices by email. Demex contends that a Payment Claim is a notice under the contract.
  2. [54]
    With respect to proof of the fact that the emailed Payment Claim was received by John Holland at or about the time it was sent, Demex submits that this is the obvious inference to be drawn in all the circumstances.  Demex points to the evidence given by Mr Green about sending the email and the evidence of the consistent time and date details recorded on the copies of the emails exhibited in the affidavits relied upon by both itself and John Holland. It submits that the Court can take judicial notice of the fact that emails are a means of ‘instantaneous’ electronic communication and relies upon a ‘presumption of regularity’.
  3. [55]
    It further submits that the inference it contends for should be drawn by the Court in circumstances where John Holland has not adduced any evidence to contradict the claim that the email was received at or about the time it was sent. Having regard to the civil standard of proof that applies, Demex submits that the Court would be satisfied that it is more probable than not that the email was received in the sense required by s 13A of the Electronic Transactions Act, at or about the time it was sent. 
  4. [56]
    On the basis of the foregoing, Demex therefore calculates the first business day after the Payment Claim was served as Monday, 27 September and the 10th business day as 11 October 2021.[12] Demex submits that because the Payment Schedule was provided by John Holland on 12 October, it was provided late and was therefore not valid. Consequently, John Holland is liable for the unpaid portion of the Payment Claim.
  5. [57]
    John Holland contends that the Payment Schedule was provided within 10 business days after the Payment Claim was served and was therefore within time and valid.
  6. [58]
    With respect to s 13A of the Electronic Transactions Act, John Holland submits that Demex has failed to prove that the email was received by it at or about 2:06 pm on Saturday, 25 September 2021. It says this is a matter for which Demex bears an evidential onus and there is simply an absence of sufficient evidence to prove the asserted fact. It argues that, on the question of the time of receipt, that the Court cannot take judicial notice of emails being an ‘instantaneous communication’ and that the Court should not apply some vague and unprecedented rule or principle to that effect. It submits that to require a recipient party to adduce evidence to contradict such a presumption would amount to a reversal of the onus of proof. It further submits that proof of when the email became capable of being retrieved is a matter that must be established by Demex by adducing evidence on that issue and it is not simply a matter that can be inferred from the available evidence.
  7. [59]
    Further, and in any event, John Holland submits that s 13A of the Electronic Transactions Act does not apply as the parties should be taken to have otherwise agreed by the terms of the construction contract that a document sent by email will only be received on a business day (and assumedly also only during ordinary business hours). It submits this conclusion follows when the contract is construed as a whole. It submits that the Court would conclude this was the objective intention of the parties, having regard to what reasonable commercial parties in a contractual relationship would have meant from the words they used.[13]
  8. [60]
    In a similar vein, John Holland submits that a proper construction of the contract also leads to a conclusion that the objective intention of the parties was that when documents were sent by email, service would only be effective upon the recipient becoming aware of the document.  In support of this argument, John Holland points to cl 17.13 and the agreement between the parties with respect to service of notices by post. It submits the Court should conclude this was also the objective intention of the parties with respect to service by email of notices or payment claims. John Holland argues that when read as a whole and properly construed, it was not the objective intention of the parties that they would be immediately aware of notices or payment claims emailed outside of business hours.
  9. [61]
    With respect to when it actually became aware of the Payment Claim email, John Holland relies on the evidence of Mr Armstrong who deposed that:
    1. (a)
      the Payment Claim email was sent outside John Holland’s normal business hours and after normal working hours for the Site had ended;
    2. (b)
      the BBB Accounts Email account was not remotely accessible and could only be accessed from John Holland’s computers, connected to the John Holland Network;
    3. (c)
      he was away from the office and did not have access to the BBB Accounts Email account on the weekend of 25 and 26 September 2021;
    4. (d)
      to his knowledge, none of the other John Holland employees able to access the BBB Accounts Email account accessed the Payment Claim email over that weekend;[14]
    5. (e)
      John Holland’s records show that at 11:46 am on Monday, 27 September 2021, the Payment Claim email was taken from the BBB Accounts Email and placed in John Holland’s filing system for claims made by Demex on the project; and
    6. (f)
      he therefore considered that the Payment Claim email was received by John Holland on Monday, 27 September 2021.
  10. [62]
    On this basis, John Holland contends that service of the Payment Claim for the purposes of ss 13(1) and 14(4)(a) of the Payment Act occurred on Monday, 27 September 2021.
  11. [63]
    On John Holland’s calculation, in accordance with the terms of the contract, the provisions of the Payment Act and s 36(1) of the Interpretation Act 1987 (NSW) (‘Interpretation Act’), the Payment Schedule was therefore not due to be provided until 12 October 2021.
  12. [64]
    Section 36 of the Interpretation Act provides:

36    Reckoning of time

  1. (1)
    If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.
  1. (2)
    If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of any thing falls—
  1. (a)
    on a Saturday or Sunday, or
  1. (b)
    on a day that is a public holiday or bank holiday in the place in which the thing is to be or may be done,

the thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be.

  1. (3)
    If in any Act or instrument a period of time is prescribed or allowed for the doing of any thing and a power is conferred on any person or body to extend the period of time—
  1. (a)
    that power may be exercised, and
  1. (b)
    if the exercise of that power depends on the making of an application for an extension of the period of time—such an application may be made,

after the period of time has expired.

  1. [65]
    On John Holland’s argument, the ‘act’ or ‘event’ of service of the Payment Schedule by Demex occurred on the day that the email was opened and read by Mr Armstrong, being Monday, 27 September 2021. On that basis, the period in which the Payment Schedule was to be provided was calculated from Tuesday, 28 September and expired on Tuesday, 12 October 2021.

Consideration

  1. [66]
    Putting aside the various nuances of the submissions made by the parties for the moment, the critical questions I must consider to resolve this first issue are:
    1. (a)
      Was service of the Payment Claim effected when John Holland received the email sent on 25 September 2021 at the nominated BBB Accounts Email address?
    2. (b)
      Was John Holland required to be aware of the receipt of the emailed Payment Claim?
    3. (c)
      Has Demex proven that the email was received by John Holland at or about the time it was sent?

What was required to effect service of the Payment Claim?

  1. [67]
    In my opinion, the answer to the first two questions is that service was effected when the emailed Payment Claim was received at the BBB Accounts Email address. Effective service did not require John Holland to be aware of the receipt of the emailed Payment Claim.
  2. [68]
    As the Payment Claim was a statutory payment claim made under the Payment Act, resolution of the first two questions begins with considering ss 13, 14 and 31 of the Payment Act.
  3. [69]
    Section 13 allowed Demex to serve the Payment Claim on John Holland. Under s 14, the time for provision of John Holland’s Payment Schedule was within 10 business days after service of the Payment Claim. By s 31(1)(d), Demex was permitted to serve the Payment Claim by emailing it to the nominated BBB Accounts Email address.
  4. [70]
    None of the relevant statutory provisions expressed when service would be effected by such means. Nevertheless, in my view, the proper construction of these provisions is that service of a payment claim by email is effected when it is received at the nominated email address of the recipient party. There is no requirement that the recipient party must be aware of the receipt of the emailed payment claim, let alone that the recipient has accessed, opened or read the email or any attachments. I consider this to be the preferred construction of ss 13, 14 and 31(1)(d) of the Payment Act, and I reject John Holland’s arguments that awareness on the part of the recipient party is required, for the following reasons.
  5. [71]
    Firstly, the construction I prefer is consistent with the purpose and objectives of the Payment Act.[15] A construction that promotes the purpose or object of the Act is to be preferred to a contrary construction.[16] The Payment Act creates a statutory regime designed to enable persons who carry out construction work under a construction contract to receive and recover progress payments. The purpose of the Payment Act is to entitle timely payment, and hence cashflow, to persons such as subcontractors, who might not otherwise receive prompt payment for work carried out by them because of project delays or principal contractors withholding or reducing payments for the benefit of their own cash-flow and profit.[17] The fact that the procedure for service of a payment claim and provision of a payment schedule must occur within very precise and tight timeframes[18] is designed to ensure that a person claiming entitlement to a progress payment is able to receive timely payment, without undue delay.
  6. [72]
    Secondly, and conversely, to construe ss 13, 14 and 31(1)(d) to require that a recipient party must first be aware of an emailed payment claim before service is effected would be contrary to the purpose and objectives of the Payment Act. Section 31 is a facultative provision designed to promote the purpose and objects of the Act. It ought not be construed in a restrictive way. If it were otherwise, the timeliness of receipt of progress payments could then be determined by the timing of action taken by the recipient.  The potential for undue delay would be obvious. A submitting party who is entitled to receive a timely progress payment would be required to wait for the recipient party to access, open and read their email. Whether through neglect, inadvertence or deliberate conduct dictated by work practices employed to suit the convenience of the intended recipient, payment of the submitting party’s progress claim could be delayed. 
  7. [73]
    Thirdly, to my mind, the language used within s 31 of the Payment Act confirms that it is not necessary for a recipient party to be aware of the receipt of an emailed payment claim before it is taken to have been served. Section 31(1) provides for a range of alternative modes or methods for service of documents required to be served under the Payment Act, including service by email. Subsections 31(1)(a) to (d) specify a particular type of act or conduct by which a party may serve a document.  Subsections (d1) and (e) do not expressly prescribe a particular act or conduct, but rather permit other methods of service to be specified, either by regulation or agreement between the parties. In my view, receipt of the served document is implicit within the acts of service described in each of ss 31(1)(a) to (d).
  8. [74]
    However, it is of some significance that it is only in the case of service of a document sent to a person’s ordinary place of business, in accordance with s 31(1)(c), that further provision is made with respect when a document is received. In such a case, s 31(2) deems that service is ‘taken to have been effected when the document is received at that place’.  No similar provision is made in respect of service by email. Further, irrespective of the means of service used, s 31 does not provide that service is effected only when the recipient becomes aware that the document has been received, nor does s 31 provide that a document sent by email must be accessed, opened or read before service is effected. In my view, ss 31(1)(a) to (d) clearly contemplate that mere receipt, either personally or through other means, is sufficient.
  9. [75]
    Such a conclusion is reinforced by s 31(4), which provides that ‘serve’ includes ‘give, send or otherwise provide’. Those terms are each consistent with service being effected by an act or conduct on the part of the submitting party, which is complete when the document is delivered, arrives or is received. Apart from the means of personal service under s 31(1)(a), none of the other means of service provided by s 31 suggest any awareness is required on the part of the recipient party, or any further act must be done by the recipient party, before service is complete.
  10. [76]
    Fourthly, s 13A(1)(a) of the Electronic Transactions Act makes plain that in the case of service by email, the time of receipt of an electronic communication (which includes an email) is the time when it becomes capable of being retrieved by the addressee at the electronic address designated by the addressee. Section 13A(2) further provides that, unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address. The words ‘capable of being retrieved’ used in s 13A are ample in their reach and they do not require that an email be opened, let alone read.[19]  
  11. [77]
    It is to be noted that s 13A(1) applies ‘unless otherwise agreed between the originator and the addressee of an electronic communication’. In my view, the parties here did not otherwise agree. Accordingly, there is no occasion to examine the terms of the construction contract in an attempt to discern some contrary objective intention of the contracting parties, in the ways John Holland submits.[20]
  12. [78]
    Clause 12.6 of the contract, in the terms substituted by special condition cl 70, expressly permitted Demex to submit a payment claim to John Holland by email. In that respect, cl 12.6(d) relevantly stated:
  1. (d)
    be delivered to be email to email address: [email protected]
  1. [79]
    In my view, the use of the word ‘delivered’ necessarily implies receipt of the email at the nominated John Holland email address. Clause 12.6 did not otherwise stipulate any other requirement for receipt of a payment claim submitted by email, nor was any provision made with respect to the timing of such submission or receipt. The same may be said of sch A which provided particulars in respect of payment claims, confirming that they were to be sent on or before the 25th of each month, by email to the BBB Accounts Email address.
  2. [80]
    None of those provisions of the contract show that the parties have ‘otherwise agreed’ in respect of the matters dealt with by s 13A of the Electronic Transactions Act.
  3. [81]
    The only other relevant part of the contract dealing with submission of documents by email was cl 17.8, as further particularised in sch A, concerning giving or serving notices under or arising out of a provision of the contract. I do not consider a Payment Claim was a such a notice. Although not defined in the contract, in my view, a ‘notice’ refers to something a party was required to notify the other party about because of an obligation arising under a provision of the contract.[21]
  4. [82]
    Irrespective, the additional particulars for cl 17.8 ‘Service of Notices’ within sch A provided:

Further to Clause 17.8; notices can be issued via email when the email becomes capable of being retrieved by the addressee at the email address stated in this Schedule Of Particulars or last notified in writing to the party giving the notice.

  1. [83]
    Although this wording is not entirely clear, I consider it evidences the objective intention of the parties was that notices could be sent by email to a specified email address and, if so, they would be deemed to be received when the sent email became capable of being retrieved at the specified email address. Thus, even if a Payment Claim were a notice, the position with respect to service of notices under the contract was analogous to that provided by s 13A of the Electronic Transactions Act.
  2. [84]
    I reject John Holland’s argument that, upon its proper construction, the contract evinces the parties’ objective intention that documents served by email should be understood in light of their agreement with respect to service of notices by post or hand, that is, the suggestion that service was effective upon the recipient becoming aware of the document. Contrary to John Holland’s submission,[22] cls 17.8 and 17.13 do not provide that service of a notice is effective upon the recipient becoming aware of the document. Indeed, the opposite it apparent. Those clauses of the contract make plain that the parties were agreed that a notice will be deemed to have been received following delivery. If anything, that position is consistent with an objective intention of the parties that a document would be deemed to be served by email when it was received and without more.
  3. [85]
    Finally on this point, I also reject John Holland’s argument that the proper construction of the contract, according to what would be understood by reasonable commercial businesspeople, is that the objective intention of the parties was that documents served by email could, or would, only be received by the recipient party on a business day (and within business hours). If that is what the parties had intended, I would expect that would have been made plain by an express term of the contract. Further, given the nature of the statutory regime and the strict obligations, requirements and timeframes it imposes upon parties, I consider that any such term of the contract would be contrary to the Payment Act and therefore void pursuant to s 34(2)(a) of the Payment Act.
  4. [86]
    Fifthly, the argument put by John Holland, that awareness is required, fails to acknowledge the practical relationship between, and the obligations of, the contracting parties. The parties to a construction contract to which the Payment Act applies will, of course, be aware that payment claims will, or at least may, be regularly submitted in respect of progress payments, at set agreed times throughout a project, in accordance with the Payment Act and the terms of the contract. In the present case, the parties had contracted, and John Holland was aware, that payment claims were to be submitted on or before the 25th day of each month. Service of a payment claim by email on that date was not an unexpected or unanticipated event. Indeed, John Holland had designated a specific email address to be used for that very purpose.
  5. [87]
    Ultimately, I do not consider the fact that the Payment Claim email was sent on a Saturday at 2:06 pm adds anything to the argument put by John Holland. The argument it advances is that effective service requires awareness by the recipient and that will only occur when the recipient accesses, opens or reads the email. If that were so, it would not matter when the email was sent, whether on a weekend or on a business day.
  6. [88]
    Further, the submission that the email was sent ‘outside of the agreed business hours’[23] is misplaced in any event. The contract provided for ‘working hours’ in cl 17.6, as further particularised in schs A and G. The ‘working hours’ as defined were the hours when demolition works were to be carried out at the Site. They were not the ‘agreed business hours’ and they did not limit the hours during which Demex could submit a payment claim. The contract did not require that a payment claim could only be served on a business day, or that if served on a non-business day it would be taken to be served on the next business day. Rather, by cls 1.1, 12.6 (as deleted and changed by per special condition cl 70) and sch A, the contract stipulated that Demex may submit a payment claim to John Holland each month on the ‘reference date’, being the 25th day of each month. That is precisely what Demex did.
  7. [89]
    Similarly, nothing in the Payment Act requires that a payment claim must be served on a business day, or that service on a non-business day would only take place on the next business day. Section 13(1A) of the Act provides that a payment claim may be served on and from the last day of the month in which the construction work was carried out. Section 13(1B) further states that if the construction contract provides for an earlier date for serving a payment claim, it may be served on and from that date. Business days are only referred to in the context of provision of a payment schedule. As noted already, under s 14(4)(b)(ii), a respondent must provide a payment schedule within 10 business days after the payment claim is served.
  8. [90]
    Further, although s 31(1)(b) of the Payment Act provides that a document may be served by lodging it ‘during normal office hours’ at the person’s ordinary place of business, no such time limit is stipulated in respect of service by email under s 31(1)(d). I consider the distinction is deliberate and demonstrates a legislative intent that a document could be served by email at any time.
  9. [91]
    Finally, I consider my preferred construction to be consistent with relevant authorities which have considered issues of service of documents by email in other contexts and the service of documents under the Payment Act.
  10. [92]
    In SGR Pastoral v Christensen,[24] (‘SGR Pastoral’), Bowskill J (as her Honour then was) considered whether an application under s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand had been served by email. There, the relevant email was sent and received on the last day of the 21 day timeframe prescribed by s 459G(3) for service of an application to set aside the statutory demand. Evidence was given by the relevant employee of the recipient that although the email had been received, and seen by him that day, he did not open the email and read the attachments until after 4:00 pm that day, when he had left the office. It was therefore argued that the application had not been served within time.
  11. [93]
    After reviewing various authorities, her Honour stated there was no reason to distinguish between electronic transmission of documents by facsimile or email, other than in terms of the evidentiary question of when such a transmission could be said to be received at the place for service.
  12. [94]
    Her Honour then considered the question of when documents served by email reach the place for service.[25] On that issue, her Honour noted that in Austar Finance v Campbell (‘Austar Finance’),[26] Austin J had concluded that service by email was not effective until the document emailed had actually come to the attention of the person served; that is, until the person had accessed the email. But, as her Honour further explained, it was apparent that Austin J’s analysis proceeded from the proposition that personal service was required.[27]
  13. [95]
    Her Honour contrasted Austin J’s conclusion with that reached by Sackar J in Bauen Constructions Pty Ltd v Sky General Services Pty Ltd (‘Bauen Constructions’)[28] where, after considering the effect of s 13A of the Electronic Communications Act 2000 (NSW), his Honour had held that if an email was sent, but not opened or read, but was capable of being retrieved, it has been ‘received’.[29]
  14. [96]
    Her Honour ultimately concluded:[30]

In the case of service by email, in my view, what must be shown is that 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. That is, that the email was sent to an email address that belongs to the nominated agent for service (here, the solicitors, Australian Property Lawyers); that the email attaching the documents to be served actually arrived at the email address; and that the email and attached documents were capable of being opened and read (even if they were not opened and read until later).

  1. [97]
    Although Bowskill J was considering the issue of service by email in a different statutory context, in my view her Honour’s reasoning and analysis are persuasive. Further, her Honour’s conclusion is consistent with the position that pertains in this case by application of s 13A of the Electronic Transactions Act.
  2. [98]
    In Falgat Constructions Pty Ltd v Equity Australia Corporation,[31] the New South Wales Court of Appeal considered the timing of service of a payment schedule under the Payment Act. The payment schedule had been provided by a courier placing it under the glass door at the front of the registered office of the recipient party during normal business hours. At issue was whether provision was effected at that time. The recipient party argued on appeal that the Payment Act required that a payment schedule actually be received by a claimant, requiring personal service so that the payment schedule actually came into the hands of a natural person on behalf of the company.
  3. [99]
    Hodgson JA (with whom Handley JA and Hunt AJA agreed) concluded that the payment schedule was provided when it was placed under the door of the appellant’s registered office.[32] Although his Honour noted that, because of the conclusion he had reached, it was not strictly necessary to consider fine questions of construction under the Payment Act, his Honour nonetheless went on to consider whether s 31 of the Payment Act applied to the provision of a payment schedule in like manner to service of a payment claim. In concluding that it did, his Honour relevantly observed:[33]

[60]  One relevant factor in approaching this question is that it seems to me highly unlikely that it was the intention of the legislature that provision of a payment schedule only occurs if the document actually comes into the hands of some person on behalf of the claimant. If that were the case, a claimant could acquire a cause of action under ss.14 and 15 of the Act by serving a payment claim, and then ensuring that no-one was at the claimant’s address or registered office until expiry of the time for provision of a payment schedule.

[61]  The use of the word ‘provide’ rather than the word ‘serve’ does carry a suggestion that a different meaning is intended, and that accordingly s.31 does not apply in the case of the word ‘provide’. Against this, however, I do not think the legislature would have (1) used a problematic word like ‘provide’ with the intention that it have a different meaning from ‘serve’, (2) given useful instructions as to how service may be effected, yet (3) given no instructions whatsoever as to how provision may be effected. When this consideration is combined with the consideration raised in the previous paragraph, in my opinion this justifies the conclusion, reached by the primary judge in this case, that ‘provide’ does not mean anything different from ‘serve’, and that s.31 applies to ‘provision’ as well as to ‘service’.

  1. [100]
    Whilst these observations were obiter dicta in respect of provision of a payment schedule, I consider they are consistent with a construction of ss 13, 14 and 31(1)(d) that service of a payment claim by email occurs when the email is received.
  2. [101]
    I note John Holland’s relies upon the decision of Vickery J in Metacorp Australia Pty Ltd v Andeco Construction Group (‘Metacorp’),[34] where his Honour considered an issue concerning service by email of a payment claim made under the Building and Construction Industry Security of Payment Act 2002 (Vic) (‘Victorian Act’). That case concerned an application for judicial review of an adjudication determination made by an adjudicator in accordance with the relevant provisions of the Victorian Act in respect of the emailed payment claim. The payment claim in question had been sent by email on a Saturday. The adjudicator had concluded that service was therefore not achieved until Monday, being the next business day. Vickery J considered that the adjudicator’s conclusion was correct. In reaching that conclusion, his Honour reasoned:[35]

Payment Claim 15 was sent by Andeco to the Superintendent as an attachment to the e-mail letter at approximately 8:40pm on Saturday 24 October 2009.

Given that Progress Claim 15 was sent by Andeco to the Superintendent as an attachment to the e-mail letter on 24 October 2009 on Saturday night at approximately 8:40pm, the timing of the email transmission made it even more likely that it was not received by the Superintendent before the next business day, Monday 26 October 2009.

The addressee and the natural person recipient of the email was Mr Wood, who was a director of the Superintendent. In these circumstances it is to be inferred, absent any other evidence on the matter, that the progress claim was likely to have been available to the Superintendent upon Mr Wood opening the email on the next business day, 26 October 2009, or sometime shortly thereafter. Mr Wood had to take a number of steps before it could be said that he had received the payment claim. Mr Wood would have to observe on his computer the notification of the email sent from his email server; he would then have to gain access to the email on his computer; and then open its attachment which comprised Payment Claim 15.  Until at least these steps had been taken by Mr Wood, it could not be said that the email and its attachment had been ‘received’ at the place of business of the Superintendent and the email remained merely accessible to the intended recipient.

  1. [102]
    In my opinion, Metacorp does not establish any principle and, in any event, is distinguishable.
  2. [103]
    Vickery J cited the judgment of Austin J in Austar Finance in support of his conclusion. However, as Bowskill J pointed out in SGR Pastoral, Austin J’s analysis was premised on the proposition that personal service was required. That is not the case with respect to service of a payment claim under the Payment Act.
  3. [104]
    Further, no reference was made in Metacorp to the Electronic Transactions Act 2000 (Vic). At the time, s 13(3) of the Act provided:[36]

13 Time and place of dispatch and receipt of electronic communications

…

  1. (3)
    For the purposes of a law of this jurisdiction, if the addressee of an electronic communication has designated an information system[37] for the purpose of receiving electronic communications, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the electronic communication enters that information system.

…

  1. [105]
    It appears no reference was made to s 13(3) because, at the time, the Victorian Act did not contain any provision applying it to a transaction constituted by or relating to a contract or to an electronic communication relating to the formation or performance of a contract.[38] Accordingly, at the time, the Victorian Act only applied ‘for the purposes of a law of this jurisdiction’. The relevant law of the jurisdiction dealing with service of the payment claim in question in Metacorp was s 50 of the Building and Construction Industry Security of Payment Act 2002 (Vic), which did not provide for service of a notice or document by email. Accordingly, it was only the relevant construction contract in Metacorp that provided for service by email and the Electronic Transactions Act 2000 (Vic) had no application.
  2. [106]
    The further case relied on by John Holland, BCS Infrastructure Support Pty Ltd v Jones Lang Lasalle (NSW) Pty Ltd,[39] is also distinguishable. That case involved service of a payment claim via the cloud-based information system ‘Corrigo’. On the issue of service, the question to be resolved was whether service was effected at the time the payment claim was uploaded to Corrigo by the submitting party or when it was identified and read by the recipient party, several weeks later.
  3. [107]
    Although s 13A of the Electronic Transactions Act (Vic) was in operation at the time, Stynes J held that s 13A(1)(a) did not apply because Corrigo was not a ‘designated address’ for the receipt of the payment claim, but that s 13A(1)(b) did apply as it was ‘another electronic address’.
  4. [108]
    In contrast to s 13A(1)(a), under s 13A(1)(b), the time of receipt of an electronic communication at ‘another electronic address’ was when both the electronic communication became capable of being retrieved and when the addressee had become aware that the electronic communication had been sent to that address. On that basis, Stynes J concluded that the recipient party did not receive the payment claim until the time they became aware that it had been uploaded to Corrigo.
  5. [109]
    Stynes J went on to note that even if she was wrong as to Corrigo not being a ‘designated address’, the legislation provided that the application of s 13A was subject to any contractual agreement between the parties and that the relevant contract between the parties did contain a specific subclause which provided that a notice sent in electronic form would be deemed to be received only when the electronic communication came to the attention of the recipient.[40]  Accordingly, it was in those circumstances that her Honour concluded the payment claim was only served when it came to the attention of the recipient party.[41]

Has Demex proven that the email was received by John Holland at or about the time it was sent?

  1. [110]
    I turn now to the third critical question I must consider: whether Demex has proven that the email was received at or about the time it was sent.
  2. [111]
    I observe at the outset that whilst there is no dispute that the email was received by John Holland by at least Monday 27 September 2021, there is no direct evidence of the actual time of its receipt.
  3. [112]
    Mr Green swore an affidavit on behalf of Demex, in which he confirmed that on 25 September 2021, he sent the Payment Claim email to Justin McCarthy, Senior Project manager for John Holland. The exhibited copy of the email he produces records on its face that it was sent ‘To:’ both the BBB Accounts Email address and to an email address for Mr McCarthy. The recorded ‘Sent:’ details are ‘Saturday, 25 September 2021 2:06 pm’. The recorded ‘Subject:’ is ‘20210925 Progress Claim 08 25 September 2021’. The ‘From:’ details are recorded as ‘Lachlan Green '. [42]
  4. [113]
    The text of the email states:

Hi Justin,

Please find attached Progress Claim 08.

Regards,

Lachlan Green | Senior Contracts Administrator

  1. [114]
    Mr Green further deposed that on 12 October 2021, Mr Armstrong, Senior Contracts Administrator for John Holland, sent an email through Aconex attaching a document purporting to be a payment schedule in response to the Payment Claim. The exhibited copy of that email records that it was ‘Sent’ on 12 October 2021. The subject of that email appears to be recorded as ‘7018/C-174 Payment Schedule 08 - 27 September 2021’.[43]
  2. [115]
    In a further affidavit, Mr Green confirmed that he had sent the Payment Claim by email to the BBB Accounts Email address as well as to Mr McCarthy’s email address. He also deposed that he had caused the Payment Claim to be sent to John Holland by uploading it to the Aconex system on 25 September 2021 at approximately 2:04 pm.[44]
  3. [116]
    I disregard the sending of the Payment Claim via Aconex for the purposes of determining when the Payment Claim was received. Even if it is assumed that the uploading of the Payment Claim via Aconex was an ‘electronic communication’ for the purposes of the Electronic Transactions Act, it is clear that the parties had agreed that the ‘designated address’ to which a Payment Claim was to be sent was the BBB Accounts Email address. The contract did not provide for the uploading of the Payment Claim via Aconex as a means for service of a payment claim. Further, even if it were a ‘designated address’, Mr Green’s evidence confirms that retrieval of an uploaded document requires the recipient to first click on the Aconex notification email and to then log onto the Aconex site when prompted, so that the recipient can download or access the relevant document.[45] There is no evidence as to whether and when this was done by John Holland.
  4. [117]
    Mr Armstrong swore an affidavit on behalf of John Holland in which he confirmed the Payment Claim email and attachments were sent by Mr Green to Mr McCarthy’s email address and also to the BBB Accounts Email at around 2:06 pm on Saturday, 25 September 2021.[46] Mr Armstrong confirmed that he did not open the email until Monday, 27 September 2021.[47] The copy of the Payment Claim email exhibited to Mr Armstrong’s affidavit records the same ‘Sent:’ details of ‘Saturday, 25 September 2021 2:06PM’ as those recorded on the copy exhibited to Mr Green’s first affidavit.[48]
  5. [118]
    Mr Armstrong further deposed that on 12 October 2021, he sent an email to Demex providing John Holland’s Payment Schedule in response to the Payment Claim. He confirmed that he believed the Payment Schedule ‘had been issued within 10 business days of receiving the September Payment Claim’ and that he had calculated that the Payment Claim had been received on Monday, 27 September 2021.[49] The exhibited copy of the relevant email appears to be an Aconex notification email with the ‘Sent:’ time recorded as ‘Tuesday, 12 October 2021 4:25 PM’ in the email header, but ‘12/10/2021 5:25:16PM AEDT (GMT +11:00)’ in the body of the message.[50]
  6. [119]
    When cross-examined, Mr Armstrong gave the following evidence:[51]

And the contract, as you understood it, says that that claim shall be submitted on or before the 25th of each month?--- Correct.

As you understood it, there was no requirement that the claim be submitted on a business day?--- It was my understanding at the time that it could only be served on a business day.

Is there some particular clause of the contract that you’re - that led to that understanding?--- It was my belief at the time that [indistinct] payment types only allowed payment claims on a business day.

Okay. Was that the reason that you only served the payment schedule on the day that you did?--- I calculated it from the first business day on the day that I received the claim, which was the Monday, and then calculated business days from that day, and on that basis I believed that the payment schedule had been served on time. 

But the reason you did that was because of your understanding about how the Act worked?--- My reason for doing that was I believed that that claim had been received on that business day, being the 27th.

…

And there’s nothing else, is there? There’s no other reason? At the time, there was no other reason motivating you to calculate it to the Tuesday?--- No, I believed that was the date that it was received, yes.

  1. [120]
    No further evidence was adduced with respect to the timing of the receipt of the Payment Claim email.
  2. [121]
    The absence of evidence on this point may perhaps have been due to Demex’s misapprehension, revealed in the course of oral submissions, that there was ‘no contest that this email was on the system…on the day it was transmitted’. When that submission was made, Senior Counsel for John Holland made plain that this point was not conceded.[52]
  3. [122]
    Notwithstanding the absence of a concession, Demex contended that I would nevertheless draw the inference that the email was received by John Holland at or about the time it was sent by Mr Green. The foundation for the contended inference is the evidence adduced with respect to the sending of the email.
  4. [123]
    There is no dispute, and I find, that the email was sent at or about 2:06 pm on Saturday, 25 September 2021. However, proof of the date and time an email was sent does not automatically prove the date and time it was received.
  5. [124]
    In order to deal with what John Holland contended was an ‘evidential lacuna’, King’s Counsel for Demex submitted I could take judicial notice of the fact that an email ‘…is a means of electronic communication which, unless something goes wrong, is more or less instantaneous…’[53]
  6. [125]
    Allied to that submission, King’s Counsel further submitted:[54]

…the qualification I put on that proposition is: when things are working properly, well, we’re assisted with the presumption of regularity, that we all assume that mechanical devices work in a way that they’re supposed to work unless there’s some reason to draw an inference that they’re not, and that’s available here.

  1. [126]
    To further bolster the argument that I should draw the inference for which Demex contended, King’s Counsel for Demex submitted I could rely on the fact the Mr Armstrong had exhibited a copy of what was necessarily John Holland’s received version of the Payment Claim email, which bore the same ‘Sent’ details of Saturday, 25 September 2:06 pm, coupled with the fact that Mr Armstrong did not in his evidence suggest that anything went wrong with John Holland’s system.[55]
  2. [127]
    In those circumstances, it was argued that the most probable inference to be drawn was ‘that the email system worked in the way you’d expect it to work’ and the Payment Claim email was therefore available for receipt at or about the time it was sent.[56]
  3. [128]
    Whilst I am prepared to take judicial notice of the fact that email is a form of electronic communication, I am not prepared to extend such notice to relieve Demex of the onus of adducing evidence proving that the Payment Claim email was received by John Holland on Saturday, 25 September 2021 at, or about, 2:06 pm.
  4. [129]
    Section 13A(1) of the Electronic Transactions Act provides that it is to be assumed that the time of receipt of an email is the time when the email becomes capable of being retrieved by the addressee at the designated email address of the addressee. Proof of that fact is therefore required in order to establish the time of receipt. Section 13A(2) assists with proof of that fact by creating an assumption that an electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address. Therefore, unless otherwise agreed between the parties, a party that wishes to rely on that assumption to prove the time of receipt of an email must establish when the email ‘reached’ the addressee’s electronic address.
  5. [130]
    I do not consider that, without more, I am permitted to take judicial notice of when an email is ordinarily received after sending, nor when an email ordinarily reaches the intended recipient’s email address.
  6. [131]
    During the course of the hearing of this application, I raised with the parties whether s 161 of the Evidence Act 1995 (NSW) (‘Evidence Act’) applied. I granted leave to the parties to provide further written submissions on the issue. 
  7. [132]
    Section 161 provides:

161 Electronic communications

  1. (1)
    If a document purports to contain a record of an electronic communication other than one referred to in section 162, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication—
  1. (a)
    was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made, and
  1. (b)
    was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made, and
  1. (c)
    was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made, and
  1. (d)
    was received at the destination to which it appears from the document to have been sent, and
  1. (e)
    if it appears from the document that the sending of the communication concluded at a particular time—was received at that destination at that time.
  1. (2)
    A provision of subsection (1) does not apply if—
  1. (a)
    the proceeding relates to a contract, and
  1. (b)
    all the parties to the proceeding are parties to the contract, and
  1. (c)
    the provision is inconsistent with a term of the contract.
  1. [133]
    The rebuttable presumption created by s 161(1)(e) is obviously intended to facilitate proof of the fact of the timing of receipt of an electronic communication. A similar provision exists in other Uniform Evidence Act jurisdictions. There is no similar statutory presumption within the Evidence Act 1977 (Qld) or under other Queensland legislation.
  2. [134]
    In its further written submission on the point, Demex noted that to the extent that the Court was exercising jurisdiction under the Jurisdiction of Courts (Cross-Vesting) Act, it was open to the Court to choose which rules of evidence were to be applied.[57]
  3. [135]
    However, Demex fairly submitted that, as the parties had approached the matter on the basis that the matter was governed by the laws of evidence applicable in Queensland, it would be appropriate for the Court to proceed on that basis and to not apply s 161 of the Evidence Act. John Holland joined in that submission.
  4. [136]
    I proceed on that basis.
  5. [137]
    Whilst I will not apply s 161(1)(e), to my mind the fact that such a presumption has been created by statute applicable in the Uniform Evidence Act jurisdictions suggests that the time of receipt of an email is not a matter that can simply be the subject of judicial notice.
  6. [138]
    A court may, of course, take judicial notice of various kinds of matters, and where that is done, no further evidence is required to establish the fact. Whilst the nature and scope of judicial notice is perhaps not susceptible to precise identification in the abstract, in Holland v Jones, Isaac J provided the following description:[58]

The only guiding principle, apart from statute, as to judicial notice which emerges from the various recorded cases, appears to be that whenever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it. The court notices it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigations it considers reliable and necessary in order to eliminate any reasonable doubt.

…

The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. This excludes from the operation of judicial notice what are not general particular facts.

  1. [139]
    I do not consider that the fact of the time of receipt of an email falls within this description.
  2. [140]
    As for the allied submission relying on the ‘presumption of regularity with respect to mechanical devices’, it was not entirely clear what rule, principle or doctrine was said to be applicable. No authority was cited for the proposition.
  3. [141]
    I take it that the submission made on behalf of Demex was a reference to the common law presumption of accuracy with respect to the readings or measurements produced by certain scientific or technical instruments.
  4. [142]
    In Porter v Kolodzeij, Herring CJ, when considering the admissibility of breath-analysing instrument test results, described the presumption in these terms:[59]

This presumption makes the recording or reading of such an instrument prima facie evidence of the facts recorded without any evidence that its accuracy has been actually tested. According to Taylor on Evidence, 12th ed., paragraph 183, at p. 167, it applies to watches, clocks, thermometers, pedometers, aneroids, anemometers, and ‘a variety of other ingenious contrivances for detecting different matters’. It has been held in several cases to apply to the readings of speedometers: see, for example, Thompson v Kovacs, [1959] VR 229; [1959] ALR 636; Peterson v Homes, [1927] SASR 419; Nicholas v Penny, [1950] 2 KB 466; sub nom. Penny v Nicholas, [1950] 2 All ER 89. The speedometer, however, today takes its place, as do the contrivances actually mentioned by Taylor, amongst a class of instruments of a scientific or technical character, which by general experience as known to be trustworthy, and are so notorious that the court requires no evidence to the effect that they do fall into such class, before allowing the presumption in question to operate with regard to readings made thereon. As Lowe, J, pointed out in Crawley v Laidlaw, [1930] VLR 370, at p. 374; 36 ALR 311, judicial notice supplies the place of evidence in such cases. Where, however, the instrument in question does not fall within the notorious class, then his Honour made it clear that evidence must be given to establish that it is a scientific or technical instrument of such a kind, as may be expected to be trustworthy, before the presumption can be relied upon.

  1. [143]
    The presumption makes the recording or reading produced by such an instrument prima facie evidence of the facts recorded without any evidence being required that its accuracy has been actually tested. It is not a presumption that applies to just any ‘mechanical device’.
  2. [144]
    In Mehesz v Redman (No 2),[60] White J noted the distinction between notorious scientific instruments and those that were not, and the different levels of evidence that would be required in order for evidence of measurements made by such instruments to be received. By reference to relevant common law authorities, White J stated:[61]

As I understand the authorities, the following conditions must be fulfilled before evidence will be admitted as to the measurements of scientific instruments:

  1. If the instrument falls within the class of instrument known as notorious scientific instruments, the court will take judicial notice of its capacity for accuracy, so that the operator merely proves that he handled it properly and read it properly on the particular occasion.
  2. If the instrument is not a notorious scientific instrument, its accuracy can be established by evidence: (a) that the instrument is within a class of instrument generally accepted by experts as accurate for its particular purpose; (b) that the instrument, if handled properly, does produce accurate results; ((a) and (b) must be established by expert testimony, that is, by experts with sufficient knowledge of that kind of instrument; and upon proof of (a) and (b), a latent presumption of accuracy arises which allows the court to infer accuracy on the particular occasion if it is proved)—(c) that the particular instrument was handled properly and read accurately by the operator on the particular occasion; ((c) can be established by a trained and competent person familiar with the operation of the instrument, not necessarily the type of expert who proves (a) and (b)).
  3. Where the actual accuracy of the measurement can be inferred from all of the proved circumstances, it is not necessary to rely upon the presumption arising from (a) and (b), proof of which is superfluous.
  1. [145]
    There are obvious difficulties applying the above principles to the present case. The date and time stamp recorded on an email through the process of sending an email does not seem to accord with the kinds of measurements or readings which might usually be described as being produced by scientific or technical instruments. Further, is not clear that the email ‘process’ falls within the class of notorious scientific or technical instruments to which the presumption of accuracy applies.
  2. [146]
    I am not aware of any case in which the recorded date and time of sending or receipt on an email has been accepted as being a reading or measurement produced by a notorious scientific or technical instrument, such that judicial notice can be taken of the accuracy of that data.  However, in Bevan v The State of Western Australia,[62] the Court of Appeal of Western Australia considered the admissibility of mobile phone data downloaded by a computer software program which was said to contain the contents of text messages stored on the phone. The Court was not satisfied that evidence of that kind came within the common law presumption of accuracy, such that judicial notice could be taken of the reliability of the produced text messages. In reaching that conclusion, Blaxell J contrasted the position with respect to text messages sent by mobile telephones to that of downloading data from a computer, relevantly stating:[63]

[34] Mobile phones and laptop computers are ubiquitous items which have been in common use in the community for a number of years.  Most people (including school children) are very familiar with the processes of sending and receiving text messages on mobile phones, and of downloading data from computers.  It is also a matter of general knowledge and experience that these processes are accurate in the sense that the data displayed (or printed out) replicates what is actually there.  It follows that mobile phones and laptop computers each fall into the category of 'notorious' scientific instruments.

[35] In my view, the downloading of data from a mobile phone into a laptop computer is a process which probably requires very little evidence to be readily understood, but which is not yet generally known to be accurate.  Accordingly, relevant data obtained in this way will be admissible if there is evidence from a suitably qualified person to prove that the process produces accurate results, as well as evidence to show that the downloading was properly carried out on the particular occasion in question.  (There is no reason why evidence as to both of these matters cannot come from a person who has had sufficient experience of the process on previous occasions). 

  1. [147]
    In my view, similar observations may be made with respect to email. It may readily be accepted that email is a technological process of electronic communication so ubiquitous and in common everyday usage that most people are very familiar with the process of sending and receiving emails. It may also be accepted that it as a matter of general knowledge and experience, of which I may take judicial notice, that the contents of the communication sent by email will invariably be received in identical form by the recipient of that email.
  2. [148]
    However, I do not consider the date and time stamp that appears on a sent email is a matter that can, without more, be presumed to accurately prove the date and time the email was received. As Logan J observed in Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 4), ‘[e]xperience suggests that email is often, but not invariably, a form of near instantaneous communication.’[64]
  3. [149]
    Whilst the matter only need be proven on the balance of probabilities, I am not satisfied on the evidence adduced that the fact in issue has been established to that standard. There is ample evidence proving the fact that the email was sent on Saturday, 25 September 2021 at 2:06 pm. There is no evidence that it was received at or about that time. Indeed, the argument put by Demex ultimately rests on the submission that the Court should simply assume that the email was received at or about the time it was sent, as that is what usually happens when an email is sent.
  4. [150]
    It must of course be borne in mind that the relevant ‘reading’ or ‘measurement’ that is relied upon here to prove the date and time or receipt is the ‘Sent’ date and time data recorded on the copy of the Payment Claim email exhibited to Mr Armstrong’s affidavit. I infer that the document is a printout of the email that was received by John Holland at the BBB Email Address. Although it is evidence of receipt of the email, it is notable that it does not bear any ‘Received’ date or time. As with Mr Green’s evidence and the copy of the sent email he exhibits, Mr Armstrong’s evidence and the exhibited copy of the email he produces prove the precise time and date the email was sent. There is no ‘reading’ or ‘measurement’ showing the received date and time.
  5. [151]
    The sent date and time evidence does not therefore provide any direct proof of the date and time the email was received. Neither, in my view, does it provide a proper basis upon which to infer that the Payment Claim email was received at or about the time it was sent.
  6. [152]
    The correct approach to the drawing of inferences in a civil case was conveniently summarised by the Victorian Court of Appeal in Masters Home Improvement Pty Ltd v North East Solutions Pty Ltd, where the Court stated:[65]

The principles, relating to the drawing of inferences in civil cases, are well established.  First, any inference must be based on facts established by admissible evidence.  Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork.  Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be ‘the more probable inference’ from those facts.  In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference. Fourthly, in determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by the evidence, in isolation.  Rather, the Court considers the totality of those facts together, giving effect to their united and combined force.

  1. [153]
    In my opinion, even if the presumption of accuracy with respect to readings and measurements of scientific or technical instruments may be applied to the process of email, it does not allow for a conclusion to be drawn that the ‘received data’ would have been the same as the ‘sent data’.  Further, having regard to the totality of the available evidence, I am not persuaded that it is the more probable inference that the email was received at or about the time it was sent.
  2. [154]
    In addition, I do not consider that the putative inference should be drawn, or may more readily be drawn, because John Holland has not produced evidence to show that the email system was not working properly and to thereby contradict the assumption that underpins Demex’s argument. Demex bears the onus of proving the fact. To reason in the way suggested by Demex would, in my view, reverse the onus of proof by requiring John Holland to adduce evidence to disprove the existence of a fact that the Court has no principled or evidentiary basis to assume.
  3. [155]
    In a case such as the present where the draconian legislation requires strict compliance and results in serious consequences for non-compliance, I consider that Demex has not discharged its onus of proof on an essential matter.[66]
  4. [156]
    Accordingly, I am not satisfied that the Payment Claim email was received by John Holland at or about 2:06 pm on Saturday, 25 September 2021. The only definite finding of fact that the evidence permits me to make is that the Payment Claim email was received on Monday, 27 September 2021 and, therefore, the Payment Claim was served on that date.

Conclusion

  1. [157]
    It follows from my conclusion with respect to the timing of the service of the Payment Claim that the Payment Schedule was validly provided within 10 business days as required by the Payment Act.
  2. [158]
    That being so, the foundation for Demex’s application falls away. Demex has not established John Holland’s liability for the statutory debt claimed, nor its entitlement to recover that statutory debt in this proceeding.
  3. [159]
    The application must fail. It is therefore not necessary to further consider or resolve the other issues raised by the application.

Orders

  1. [160]
    Accordingly, the orders I make are:
  1. The Application is dismissed
  1. The Applicant is to pay the Respondent’s costs.

Footnotes

[1]  Standard subcontract, cl 12.7, sch A particulars.

[3]Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340, [3]-[19] (Kiefel, Bell, Gageler, Keane and Gordon JJ); [2016] HCA 52; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1, [39] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); [2018] HCA 4.

[4]All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289, [8]-[9] (Leeming and Payne JJA, White JA agreeing).

[5]Payment Act ss 3(1)-(2).

[6]  Ibid ss 3(3)(a)-(b).

[7]  Exercising jurisdiction under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).

[8]Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd, [15] (Kiefel, Bell, Gageler, Keane and Gordon JJ) (citations omitted).

[9]Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd, [15].

[10]Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393, [208] (McDougall J); [2010] NSWCA 190.

[11]  It is to be noted that, pursuant to s 14E(1)(a) of the Electronic Transactions Act, s 13A applies to a transaction constituted by or relating to a contract. Section 5 of the Act defines ‘transaction’ to include ‘any statement, declaration, demand, notice or request, including an offer and the acceptance of an offer, that the parties are required to make or choose to make in connection with the formation or performance of a contract, agreement or other arrangement’.

[12]  Noting that Sundays and public holidays are not a ‘business day’ under s 4(1) of the Payment Act and the contract and that Monday 4 October 2021 was a public holiday in New South Wales.

[13]  In accordance with Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640, [35] (French CJ, Hayne, Crennan and Kiefel JJ), [53] (Gageler J); [2014] HCA 7; reaffirmed and applied in Simic v New South Wales Land and Housing Corp (2016) 260 CLR 85, [78] (Gageler, Nettle and Gordon JJ); [2016] HCA 47 and H Lundbeck A/S v Sandoz Pty Ltd (2022) 399 ALR 184, [57] (Kiefel CJ, Gageler, Steward and Gleeson JJ); [2022] HCA 4.

[14]  That position was confirmed in the affidavits sworn by the other relevant John Holland employees, Kay Donovan, Samantha Dennis and Elizabeth Ladmore.

[15]Payment Act, s 3.

[16]Interpretation Act, s 33.

[17]  Explanatory Note, Building and Construction Industry Security of Payment Bill 1999 (No 2) (NSW); Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd, [4].

[18]All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd, [21].

[19]Bauen Constructions Pty Ltd v Sky General Services Pty Ltd & Anor [2012] NSWSC 1123, [77] (Sackar J).

[20]  Respondent’s Outline of Submissions, [23]-[25].

[21]  For example, a notice of defective prior work given under cl 9.8 or a notice of variation given under cl 11.8.

[22]  Respondent’s Outline of Submissions, [25].

[23]  Respondent’s Outline of Submissions, [23].

[24]  [2019] QSC 229.

[25]SGR Pastoral v Christensen, [28].

[26]  (2007) 215 FLR 464; [2007] NSWSC 1493.

[27]SGR Pastoral v Christensen, [31], referring to Austin J’s analysis in Austar Finance v Campbell, [55],[56] and [60].

[28]Bauen Constructions Pty Ltd v Sky General Services Pty Ltd, [77]-[78].

[29]SGR Pastoral v Christensen, [33]. Bowskill J noted Bauen was distinguishable on that basis as neither the Electronic Transactions (Queensland) Act 2001 (Qld) nor the Electronic Transactions Act 1999 (Cth) applied in the case before her Honour.

[30]SGR Pastoral v Christensen, [37] (citations omitted).

[31]  [2006] NSWCA 259.

[32]  Ibid [56].

[33]  Ibid [60]-[61].

[34]  (2010) 30 VR 141; [2010] VSC 199.

[35]  Ibid, [91]-[93].

[36]  The Act has since been amended and now makes similar provision in s 13A, which is in identical terms to s 13A of the Electronic Transactions Act 2000 (NSW).

[37]  An ‘information system’ was defined in s 4 to mean ‘…a system for generating, sending, receiving, storing or otherwise processing electronic communications.’

[38]  Cf present s 14E of the Electronic Communications Act (Vic), which was introduced and came into effect after Metacorp.

[39]  [2020] VSC 739.

[40]  Ibid [124], setting out the terms of sub-cl 34.5.

[41]  Ibid [146]-[148].

[42]  Affidavit of Lachlan Green, sworn 2 March 2022, [9]; Exhibit LG-1, p 132.

[43]  Ibid [14], Exhibit LG-3, p 260.

[44]   Affidavit of Lachlan Green, sworn 22 April 2022, [14]-[16], [22].

[45]  Ibid [19]-[20].

[46]  Affidavit of Simon Blair Armstrong, sworn 23 March 2022, [28]-[29].

[47]  Ibid [31].

[48]  Ibid Exhibit SBA-17, p 139.

[49]  Ibid [47]-[48].

[50]  Ibid, Exhibit SBA-18, p 171.

[51]  Transcript, 30 August 2022, p 19:1-40. (Nb. The issued transcript does not contain page numbers.)

[52]  Ibid, p 45:10-15.

[53]  Ibid p 80:48-49.

[54]  Ibid p 81:1-5.

[55]  Ibid p 81:7-30.

[56]  Ibid p 81:30-33.

[57]Jurisdiction of Courts (Cross-Vesting) Act, s 11(1)(c).

[58]  (1917) 23 CLR 149, 153; [1017] HCA 26.

[59]  [1962] VR 75, 78.

[60]  (1980) 26 SASR 244.

[61]  Ibid, 251-252.

[62]  (2010) 202 A Crim R 27; [2010] WASCA 101.

[63]  Ibid [34]-[35].

[64]  (2009) 255 ALR 632, [25]; [2009] FCA 522.

[65]  (2017) 372 ALR 440, [101]; [2017] VSCA 88 (citations omitted).

[66]  Having regard to the nature and consequences of the fact in issue in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336, 361 (Dixon J); [1938] HCA 34.

Close

Editorial Notes

  • Published Case Name:

    Demex Pty Ltd v John Holland Pty Ltd

  • Shortened Case Name:

    Demex Pty Ltd v John Holland Pty Ltd

  • Reported Citation:

    (2022) 12 QR 438

  • MNC:

    [2022] QSC 259

  • Court:

    QSC

  • Judge(s):

    Crowley J

  • Date:

    25 Nov 2022

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Austar Finance Group Pty Ltd v Campbell [2007] NSWSC 1493
2 citations
Jump To
Cite 1 - [2007] NSWSC 1493
Cite 2 - [2007] NSWSC 1493
Austar Finance Group Pty Ltd v Campbell (2007) 215 FLR 464
2 citations
Jump To
Cite 1 - (2007) 215 FLR 464
Cite 2 - (2007) 215 FLR 464
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
2 citations
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Cite 1 - (1973) 129 CLR 99
Cite 2 - (1973) 129 CLR 99
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36
2 citations
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Cite 1 - [1973] HCA 36
Cite 2 - [1973] HCA 36
Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123
2 citations
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Cite 1 - [2012] NSWSC 1123
Cite 2 - [2012] NSWSC 1123
BCS Infrastructure Support Pty Ltd v Jones Lang Lasalle (NSW) Pty Ltd [2020] VSC 739
2 citations
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Cite 1 - [2020] VSC 739
Cite 2 - [2020] VSC 739
Bevan v Western Australia (2010) 202 A Crim R 27
2 citations
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Cite 1 - (2010) 202 A Crim R 27
Cite 2 - (2010) 202 A Crim R 27
Bevan v Western Australia [2010] WASCA 101
2 citations
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Cite 1 - [2010] WASCA 101
Cite 2 - [2010] WASCA 101
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
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Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Briginshaw v Briginshaw (1938) HCA 34
2 citations
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Cite 1 - (1938) HCA 34
Cite 2 - (1938) HCA 34
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190
2 citations
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Cite 1 - [2010] NSWCA 190
Cite 2 - [2010] NSWCA 190
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393
2 citations
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Cite 1 - (2010) 78 NSWLR 393
Cite 2 - (2010) 78 NSWLR 393
Crawley v Laidlaw [1930] VLR 370
1 citation
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Cite 1 - [1930] VLR 370
Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd and Ors [2014] HCA 7
2 citations
Jump To
Cite 1 - [2014] HCA 7
Cite 2 - [2014] HCA 7
Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd and Ors (2014) 251 CLR 640
2 citations
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Cite 1 - (2014) 251 CLR 640
Cite 2 - (2014) 251 CLR 640
Falgatt Constructions Pty Ltd v Equity Australia Corporation Pty Ltd (2006) NSWCA 259
4 citations
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Cite 1 - (2006) NSWCA 259
Cite 2 - (2006) NSWCA 259
Cite 3 - (2006) NSWCA 259
Cite 4 - (2006) NSWCA 259
H Lundbeck A/S v Sandoz Pty Ltd (2022) 399 ALR 184
2 citations
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Cite 1 - (2022) 399 ALR 184
Cite 2 - (2022) 399 ALR 184
H Lundbeck A/S v Sandoz Pty Ltd [2022] HCA 4
2 citations
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Cite 1 - [2022] HCA 4
Cite 2 - [2022] HCA 4
Holland v Jones (1917) 23 CLR 149
2 citations
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Cite 1 - (1917) 23 CLR 149
Cite 2 - (1917) 23 CLR 149
Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88
2 citations
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Cite 1 - [2017] VSCA 88
Cite 2 - [2017] VSCA 88
Masters Home Improvement Pty Ltd v North East Solutions Pty Ltd (2017) 372 ALR 440
2 citations
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Cite 1 - (2017) 372 ALR 440
Cite 2 - (2017) 372 ALR 440
Mehesz v Redman (No 2) (1980) 26 SASR 244
3 citations
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Cite 1 - (1980) 26 SASR 244
Cite 2 - (1980) 26 SASR 244
Cite 3 - (1980) 26 SASR 244
Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd (2010) 30 VR 141 [2010] VSC 199
2 citations
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Cite 1 - [2010] VSC 199
Cite 2 - [2010] VSC 199
Metacorp Pty Ltd v Andeco Construction Group Pty Ltd (2010) 30 VR 141
3 citations
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Cite 1 - (2010) 30 VR 141
Cite 2 - (2010) 30 VR 141
Cite 3 - (2010) 30 VR 141
Nicholas v Penny [1950] 2 KB 466
1 citation
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Cite 1 - [1950] 2 KB 466
Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 4) (2009) 255 ALR 632
2 citations
Jump To
Cite 1 - (2009) 255 ALR 632
Cite 2 - (2009) 255 ALR 632
Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 4) [2009] FCA 522
2 citations
Jump To
Cite 1 - [2009] FCA 522
Cite 2 - [2009] FCA 522
Penny v Nicholas [1950] 2 All ER 89
1 citation
Jump To
Cite 1 - [1950] 2 All ER 89
Peterson v Homes [1927] SASR 419
1 citation
Jump To
Cite 1 - [1927] SASR 419
Porter v Kolodzeij (1962) V.R., 75
2 citations
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Cite 1 - (1962) V.R., 75
Cite 2 - (1962) V.R., 75
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4
2 citations
Jump To
Cite 1 - [2018] HCA 4
Cite 2 - [2018] HCA 4
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1
2 citations
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Cite 1 - (2018) 264 CLR 1
Cite 2 - (2018) 264 CLR 1
Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289
2 citations
Jump To
Cite 1 - [2017] NSWCA 289
Cite 2 - [2017] NSWCA 289
SGR Pastoral Pty Ltd v Christensen(2019) 2 QR 334; [2019] QSC 229
2 citations
Jump To
Cite 1 - [2019] QSC 229
Cite 2 - [2019] QSC 229
Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85
2 citations
Jump To
Cite 1 - (2016) 260 CLR 85
Cite 2 - (2016) 260 CLR 85
Simic v New South Wales Land and Housing Corporation [2016] HCA 47
2 citations
Jump To
Cite 1 - [2016] HCA 47
Cite 2 - [2016] HCA 47
Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340
2 citations
Jump To
Cite 1 - (2016) 260 CLR 340
Cite 2 - (2016) 260 CLR 340
Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd [2016] HCA 52
2 citations
Jump To
Cite 1 - [2016] HCA 52
Cite 2 - [2016] HCA 52
Thompson v Kovacs [1959] VR 229
1 citation
Jump To
Cite 1 - [1959] VR 229
Thompson v Kovacs [1959] ALR 636
1 citation
Jump To
Cite 1 - [1959] ALR 636

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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