The Victorian Supreme Court decision in Westbourne Grammar School v Gemcan Constructions Pty Ltd  VSC 645 is a timely reminder that if you wish to serve a notice of default or show cause notice under a construction contract, the requirements of the contract as to the form of the notice must be followed strictly.
In this case the contract required the notice from Westbourne to state a date and time by which the builder (Gemcan) must show cause (which shall not be less than 7 clear days after the notice is received by Gemcan).
The notice from Westbourne however stated that “you must show cause to Westbourne by the expiration of 7 clear days after this notice is received by you”.
The Court found the notice to be ineffective and invalid as it did not specify a date and time by which Gemcan was required to show cause but rather it purported to specify a timeframe within which to show cause. Further even if the provision of the timeframe complied with the contract, the timeframe was less than the minimum time required by the clause.
The Court held that “the notice is of critical importance to both parties. The builder may potentially lose its rights to payment under the contract. The principal wishes to have certainty that it can takeover the works or terminate the contract. To work out the date and time the builder would need to make inquiries as to how and when the notice was received. The terms of the notice was designed to put beyond any doubt the time and date by which the builder had to show cause”.