Queensland Judgments
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McCarthy v TKM Builders Pty Ltd & Anor

Unreported Citation: [2020] QSC 301

This matter concerned an adjudication application under the Building Industry Fairness (Security of Payment) Act 2017 where documents that formed part of the application were provided by a “Dropbox” link provided in an email. Justice Martin held that this did not satisfy the statutory requirement that the application be “given” to the respondent to a payment claim. Consequently, the adjudicator lacked jurisdiction to determine the claim.

Martin J

7 October 2020

The applicant and first respondent had entered into a construction contract for a building project. [6]. Subsequently, the first respondent emailed to the applicant an adjudication claim made under the Building Industry Fairness (Security of Payment) Act 2017 (“the BIF Act”). [1], [7]. The email attached the adjudication application form, but not the first respondent’s submissions. These could only be obtained by opening a “Dropbox” link that was contained in the email. [8]. The applicant did not open the Dropbox link and forwarded the email to his solicitors. [9].

The adjudicator held that this satisfied the statutory requirement in s 79 of the BIF Act that a copy of the adjudication application be “given” to the applicant ([3], [10]–[12]) and found in favour of the first respondent on the payment claim. [13].

Before the Court, the applicant argued that the adjudicator lacked jurisdiction as the application had not been “given” to the applicant as required by s 79 of the BIF Act. [1].

Justice Martin noted that s 102 of the BIF Act preserved the operation of s 39 of the Acts Interpretation Act 1954 (“the AIA”). Section 39 of the AIA permitted a document to be served on an individual either personally or by sending it by “post, telex, facsimile or similar facility to, the address of the place of residence or business of the person”. [5].

His Honour applied the decision in Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2015] 1 Qd R 265, on the predecessor to the BIF Act, to this case. [23]. The first respondent’s submissions formed part of the application and had to be served as part of it. [18]. Effective service required the efforts of the first respondent to have resulted in the applicant becoming aware of the contents of the document. [20]. In this case, Martin J held that the applicant “did not become aware of the contents of the document merely by being referred to a link to a Dropbox file”. It was insufficient to show that his solicitors had accessed the submissions when forwarded the email. [14]–[23]. Consequently, the applicant had not been “given” the adjudication application, as s 79 of the BIF Act required service “to be effected in accordance with s 39 of the [AIA]”. [23].

Applying National Management Group Pty Ltd v Biriel Industries Pty Ltd [2019] QSC 219; [2019] 39 QLR, 7–8, the result of the failure to give the adjudication application to the applicant in accordance with s 79 of the BIF Act was that the “the adjudicator did not have the necessary jurisdiction to make the decision”; “service was required before an adjudication may be validly undertaken”. [24]–[26].

In the result, the parties were ordered to bring in minutes of order, and were to be heard as to costs. [27].

S Walpole


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