In the recent decision of Parkview Constructions Pty Ltd v Total Lifestyle Windows Pty Ltd  NSWSC 194, the claimant (Total Lifestyle Windows) served its adjudication application on the respondent (Parkview) by letter which attached a USB containing the adjudication application.
Section 18(3) of the Victorian Building and Construction Industry Security of Payment Act (section 17(3) of the NSW Act) requires an Adjudication Application to be in writing. Similarly section 21 of the Act (section 20 of the NSW Act) requires Adjudication Responses to be in writing.
Parkview gave evidence that the files on the USB were not viewed until 2 days after it was received in the post and subsequently served its adjudication response within 5 business days of opening the USB to view the adjudication response.
The adjudicator determined that the Adjudication Application was served on the day the USB was received and as a consequence, the Adjudication Response was served out of time and disregarded Parkview’s Adjudication Response.
On hearing Parkview’s application for judicial review, the NSW Supreme Court quashed the adjudication determination. In doing so, the Court determined that an adjudication response contained on a USB is not “in writing” as required by the Act and is only received at the time the files on the USB are accessed.
Adjudication Applications and Adjudication Responses under the Act are commonly very voluminous. For that reason, it may be tempting for claimants and respondents to lodge and serve their material by USB, CD or through a cloud based file transfer system.
This case highlights the danger of doing so, particularly given the strict time limits in the legislation which must be adhered to if an adjudication application is to avoid being challenged in the Courts.