Application of Building and Construction Industry Payments Act 2004 (Qld) (Act) – service of notice of adjudication – notice of adjudication sent to Post Office box (PO box) – when received
Sending notice of an adjudication to a PO box does not satisfy the requirements for service under section 23(1) or section 103 of the Act.
Masic Pty Ltd (respondent) made a payment claim under the Act and CMF Projects Pty Ltd (applicant) issued a payment schedule asserting that no money was owing. The respondent made an adjudication application.
On 14 January 2014, a notice of the adjudicator's appointment was sent to the applicant's PO box. The notice was not sent to the applicant's registered address. The applicant received the notice at its registered office on 20 January 2014 and sent an adjudication response to the adjudicator on 21 January 2014.
The adjudicator decided that the notice of appointment had been given to the applicant on 15 January 2014, meaning the applicant's adjudication response needed to be served no later than 17 January 2014. The adjudicator consequently excluded the adjudication response from consideration in the adjudication.
The applicant sought a declaration that the adjudication decision was void.
Daubney J held that the adjudication decision was void because the adjudicator failed to consider the adjudication response and, in doing so, did not comply with the essential requirements of the Act.
His Honour held that mailing to a PO box does not satisfy the service requirements of the Act. His Honour referred to section 103 of the Act, which provides that service may occur in a manner provided under the contract or in accordance with the Acts Interpretation Act 1954 (Qld). The Acts Interpretation Act 1954 (Qld) permitted service at the applicant's head office, the registered office or the principal place of business. His Honour held that service was not effected under either of:
- section 103(1) of the Act because the contract did not provide for notices to be given at a PO box; or
- section 103(2) of the Act as a PO box is not an office.
His Honour held that service occurred when the notice of adjudication was received at the applicant's registered office on 20 January 2014. It followed that the applicant's adjudication response was required by 22 January 2014. As the adjudication response was sent on 21 January 2014, his Honour concluded that the adjudicator should not have excluded the adjudication response from consideration.