Written by The NSW Court of Appeal has recently clarified two issues that frequently cause disputes under the Building and Construction Industry Security of Payment Act 1999 (NSW) (‘SOP Act’): when service by email is valid, and whether early service of an adjudication notice can be corrected so the notice still has legal effect.
In McVitty Grove v BPB Earthmoving Pty Ltd [2025] NSWCA 103, a claim for payment and then a notice of intention to adjudicate were sent by email. McVitty Grove argued that they had never “specified” that email address for service under Section 31(1)(d) of the SOP Act and had not read the emails until much later. Therefore, from this view, service by email was not valid and the notice of intention to adjudicate was sent too early under Section 17(2) of the SOP Act. The Court disagreed, finding that by previously using the same email address for invoices and other correspondence, McVitty Grove had “impliedly specified” the email address for service. Importantly, under the Electronic Transactions Act 2000 (NSW), an email is considered served when it is “capable of being retrieved”, regardless of whether it is opened.
The Court also rejected the notion that an adjudicator’s good faith could save a notice served too early. Section 17(2) imposes strict timeframes, and an adjudicator cannot exercise jurisdiction where a notice has been served prematurely.
This case highlights two important points: an email address used in business dealings may be used as an address for service, and the timing of adjudication notices plays a crucial role in determining whether they are effective.