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The appellant applied for the adjudication of payment claims under the Building and Construction Industry Payment Act 2004 (“BCIP Act”), but failed to serve the applications on the respondent as required by s 21(5) BCIP Act until 12 business days after lodgement. The appointed adjudicator determined that service had been ineffective and that there was no jurisdiction to determine the applications because s 38(4) Acts Interpretation Act 1954 (“AI Act”) applied to s 21(5) BCIP Act such that service should have taken place “as soon as possible” after lodgement. Upon an application to the Supreme Court, the primary judge also applied s 38(4) AI Act to the requirement for service under s 21(5) BCIP Act and concluded that the adjudicator did not have jurisdiction because service of the applications had not taken place as soon as possible. The appellant appealed to the Court of Appeal, contending that the primary judge erred in applying s 38(4) AI Act to s 21(5) BCIP Act, and in finding that service had not taken place as soon as possible in the circumstances.
Gotterson and Philippides JJA and Applegarth J
6 September 2019
The appellant, Niclin Constructions Pty Ltd (“Niclin”), lodged applications for adjudication in relation to payment claims for design and construction work undertaken for the respondent, SHA Premier Constructions Pty Ltd (“SHA”). . However, due to an oversight, Niclin did not serve copies of the applications on SHA as required by s 21(5) Building and Construction Industry Payments Act 2004 (“BCIP Act”) until 12 business days after the applications had been filed. –, . The appointed adjudicator found that service on SHA was ineffective because s 38(4) Acts Interpretation Act 1954 (“AI Act”) applied to require that service under s 21(5) BCIP Act take place “as soon as possible”, and concluded that there was no jurisdiction to determine the applications without proper service. .
Niclin subsequently applied to the Supreme Court seeking inter alia a declaration that the adjudicator’s decisions concerning the applications were void, and related orders remitting the applications for determination. . Like the adjudicator, the primary judge concluded that s 21(5) BCIP Act required service of the applications to take place “as soon as possible” after lodgement, and that service in that manner was a prerequisite to a valid adjudication upon the applications. –. Niclin appealed to the Court of Appeal, contending that the primary judge erred by applying s 38(4) AI Act to the requirement for service under s 21(5) BCIP Act, and in finding that Niclin had not served SHA “as soon as possible” in the circumstances. –.
Whether s 21(5) BCIP Act required service “as soon as possible”
Justice Applegarth observed that in the absence of any specified period for service under s 21(5) BCIP Act, s 38(4) AI Act applied to require that service take place “as soon as possible” unless a contrary intention appeared in the BCIP Act. . His Honour identified that rather than tending against the application of the AI Act, the absence of an express provision for time in s 21(5) BCIP Act may have been indicative of an intention to import the “demanding, but flexible” requirement of service “as soon as possible”. –. Similarly, his Honour highlighted that any potential for disputes as to what constituted service “as soon as possible” did not tend against the application of the AI Act, because disputes as to the fact of service also regularly arise in the context of more express provisions. .
Justice Applegarth explained that the interpretation that best achieved the purpose of the BCIP Act was one that imposed a strict timeframe which still allowed for the exigencies of service, rather than one which imposed no timeframe at all. –. His Honour considered that the requirement to serve an adjudication application “as soon as possible” was consistent with the BCIP Act’s purpose of ensuring expeditious resolution of disputes, and that it was unlikely that Parliament would have intended to allow a claimant to delay service for as long as it pleased. . His Honour therefore concluded that the primary judge was correct to find that s 38(4) AI Act applied to require that service under s 21(5) BCIP Act take place “as soon as possible”. .
Conclusion and orders
His Honour also concluded that service after 12 business days was not “as soon as possible” in the context of an Act that sought “to ensure the expeditious determination of adjudication applications”. . In the result, Applegarth J (Gotterson and Philippides JJA agreeing) dismissed the appeal with costs. , , .