Equinox Construction Pty Ltd v Henning & Anor

In this significant application, Ryan J was asked to consider whether or not the first respondent had given a copy of the adjudication application to the respondent for the purposes of the Building Industry Fairness (Security of Payment) Act 2017. In considering this question, her Honour provided important guidance about the evidence required to prove that an adjudication application has been given to a party by post.

Ryan J

31 August 2021

Mr Henning, a landscaper, did some work for Equinox, a company which was building town houses in Annerley. [14]. In February 2020, he made a claim for payment in the amount of $29,255.88. [15]. Equinox did not respond to the payment claim. [15]. On 5 March 2020, Mr Henning applied for an adjudication in respect of his payment claim under the Building Industry Fairness (Security of Payment) Act 2017 (BIF Act); he ultimately received an adjudication decision in his favour on 25 March 2020. [16]. Equinox did not participate in the adjudication, and says it did not receive a copy of the application, only becoming aware of the adjudication on 31 March 2020. [17].

After Mr Henning sought to enforce the adjudication decision, Equinox commenced Supreme Court proceedings, seeking a declaration that the adjudication decision is void on the ground that Mr Henning never “gave” Equinox a copy of his adjudication application as required under s 79(3) of the BIF Act. [1].

Upon the hearing of the matter, Ryan J found that there were deficiencies in the evidence led by both sides. In respect of Mr Henning, her Honour noted that his evidence did not say that he either paid postage, nor actually posted the adjudication application to Equinox. [24]. Further, the evidence led on his behalf did not reveal Equinox’s address at the relevant time. [25]. Finally, the address on the envelope said to have been posted by Mr Hennig was not an exact match for Equinox’s registered office address. [28].

Equinox’s evidence was that its registered address has always been its accountants’ address. [37]. However, Equinox’s accountants moved office some time in late 2019 or early 2020. [39]–[40]. Ryan J found there were inconsistencies regarding when this move occurred and the mail redirection that was in place. [56]. Further, the applicant’s name was omitted from the list of organisations to which the mail redirection applied and the address recorded on both the ASIC records and the QBCC licence records was updated some time after the move actually occurred. [56].

Against the background of these evidentiary issues, Ryan J considered that the question was when the Court could infer that an applicant for an adjudication “gave” a copy of the application to the respondent to the application. [5]. As to this, her Honour considered that McCarthy v TKM Builders Pty Ltd (2020) 5 QR 722 and Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2015] 1 Qd R 265 were instructive authorities.

In McCarthy, Martin J held that a person who was emailed a copy of an adjudication application and link to a Dropbox file containing the submissions accompanying the application had not been given a copy of the application. [65]–[66]. As noted by Ryan J, the conclusion in McCarthy relied on McMurdo J’s (as his Honour then was) judgment in Basetec, “which held that service of a document requires something in the nature of its receipt”. [66]. To this end, McMurdo J distinguished between “sending” a document “and telling a party where they might find a document”. [73]. However, where a document had in actuality been received and come to the attention of the person to be served with it, there had been actual service, provision and receipt. [74]–[78].

Ryan J turned then to when a party will be taken to have been “given” or “served” a document by post, which her Honour noted is permissible under s 39 of the Acts Interpretation Act 1954. [81]. Importantly, once it is proved that a document is sent by post, the presumption of service must be overcome by proof of non-delivery rather than a mere assertion of non-receipt. [94]. In reviewing the authorities regarding when a document will be served by post, her Honour noted similar, but subtly different, statements in the authorities. [96]–[97]. On the one hand, in Pearlburst Pty Ltd v Summers Resort Group Pty Ltd [2007] NSWSC 1126, Barrett J considered that it was necessary to prove that a letter was properly addressed, pre-paid, posted as a letter and sent to the registered office of the company. [96]. On the other, in Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216, Brereton J had considered that it was necessary to prove that the envelope bore the correct name and address, that it contained the relevant document to be served, that it bore the correct cost of postage and that it had been placed in the post. [97].

As to what it would take for a letter to be properly addressed, Ryan J noted Federal Court authority where it was held that a statutory demand had not been served where a “private and confidential” stamp had partially obscured the post code and part of the street name on the envelope which meant that, as a matter of law, it had not been sent to the registered office. [100]–[105]. Her Honour noted that strict approaches such as this – common in respect of statutory demands – had been endorsed in the context of security of payments legislation, given the rights and advantages conferred by that legislation. [106]–[120]. Accordingly, Ryan J found that appropriate service of an adjudication application “is critical to the jurisdiction of the adjudicator” and an applicant must strictly prove that a copy of the application has been given to the respondent. [128]–[129].

As applied to the instant case, Ryan J considered that, owing to discrepancies between the listing of Equinox’s registered address with ASIC and the QBCC, the application had been addressed “to a ‘principal’ office of Equinox”. [133]. However, as Mr Henning’s evidence did not address whether postage was paid or how the posting was effected, her Honour was not satisfied that there was sufficient evidence to support the conclusion that he had “given” the application to Equinox. [134]–[137].

Accordingly, her Honour declared the adjudication decision void. [137].

M Paterson