In the recent case of BCS Infrastructure Support Pty Ltd v Jones Lang Lasalle (NSW) Pty Ltd [2020] VSC 739, the defendant, JLL, had requested BCS use a cloud-based information system, Corrigo, for the purposes of invoicing JLL under a contract. BCS uploaded its payment claim to Corrigo on 16 January 2020. However, JLL did not open or read the payment claim until 11 February 2020, and did not issue a payment statement to BCS until 18 February 2020.

BCS claimed that JLL had failed to provide a payment schedule in response to, or pay the amount claimed in, BCS's payment claim within the time periods specified in the Building and Construction Industry Security of Payment Act 2002 (Vic) (the SOP Act).

The Court noted that section 50 of the SOP Act describes how notices or documents under the SOP Act may be served and that the service of notices via uploads to cloud-based information systems is not expressly contemplated in that section. Nonetheless, it found that the methods of service set out in section 50 do not limit or exclude the common law or the provisions of other applicable legislation in respect of the service of notices and that Corrigo was a valid means of electronic delivery.

However, the Court found that, in order for a payment claim to be served on a party, that party must actually receive the payment claim. In this case, that would require JLL to log into Corrigo and identify and open the file containing the payment claim. Accordingly, JLL could not be said to have received the payment claim on the date that it was uploaded to Corrigo by BCS – instead, the date on which JLL received the payment claim was 11 February 2020. As JLL issued a payment statement on 18 February 2020, that payment statement had been issued within the 10 business day time period required by section 15 of the SOP Act.

In its reasoning, the Court was critical of the manner in which BCS chose to deliver the payment claim. BCS had not used Corrigo for the service of payment claims before and alternative means of service such as email were available to it. The Court also noted that BCS had attached the payment claim to an invoice with a different sum and entered the payment claim into the online system in response to an unrelated work order. Accordingly, the Court held that JLL's failure to identify and read the payment claim was not unreasonable, but a consequence of the manner in which BCS chose to deliver the payment claim.