In Parkview Constructions Pty Limited v Total Lifestyle Windows Pty Ltd1, the Supreme Court of NSW recently found that the delivery of copy of an adjudication application under the Building and Construction Industry Security of Payment Act 1999 (Act) saved on a USB enclosed under a covering letter was not alone sufficient to effect service under the Act. Service only occurred when the respondent accessed the documents on the USB (which in this case occurred a day after delivery). The reasoning will also apply to service of other documentation under the Act, including payment claims, payment schedules and adjudication responses.
The delay between delivery and access can be very significant in the context of the short timeframes imposed by the Act. Indeed in this case the delay resulted in the determination being found to be void for jurisdictional error and lack of procedural fairness.
The decision turned on whether delivery of a USB constituted delivery of the adjudication application "in writing". The Court found it did not. Hammerschlag J reasoned that the USB itself did not represent or reproduce the words of the adjudication application, being "only a small piece of plastic, perhaps with some circuitry on it." The USB was described as "a device which, if actioned, is capable of representing or reproducing what is stored on it in visible form", and in this way found to be analogous to provision of a file-share link, ie. an object (in this case physical) that if "actioned" by the recipient through use of a compatible computer would allow the recipient to become aware of the content. Following the Queensland Supreme Court decision in Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd2, the Court held that the time at which the respondent accessed (as opposed received) the USB was the time at which it was served.
The rationale presented for this finding is that there should be no assumption that the recipient has the technology to access the USB3. This does not sit particularly well with modern construction industry practices. Further, delay in accessing documents served by USB or file-share link (i.e. Box, Dropbox or the like) may be motivated by the recipient being aware that the delay will assist it in avoiding the application of the Act. The lack of compatible technology rationale and emphasis on receipt of a document "in writing" also jars somewhat with the earlier judicial guidance that ‘actual service does not require the recipient to read the document4.
Nevertheless, until such time as there are amendments to the Act, parties relying upon it need to understand the risks involved with electronic service and service by USB. Provided it is properly documented, delivery of printed documents (whether to the recipient personally or to the recipient’s ordinary place of business during normal business hours) with acknowledgement of receipt, when available, remains the safest method of service available under the Act5. Stakeholders need to be aware that service by electronic means, whether by facsimile, email etc, while allowing greater efficiencies in terms of printing and productive use of the Act’s very limited time frames can, if not handled carefully, easily lead to complications and litigated challenges.