Claire Rewais and Osama Rewais t/as McVitty Grove v BPB Earthmoving Pty Ltd [2025] NSWCA 103

What the court decided

The appeal concerned the Building and Construction Industry Security of Payment Act 1999 (NSW) [28]. Claire Rewais and Dr Osama Rewais, trading as McVitty Grove, engaged BPB Earthmoving Pty Ltd to carry out earthworks at their property in Woodlands, New South Wales [28], [42]. The primary judge found that the parties had made an oral agreement under which BPB would carry out earthworks as the owners asked from time to time [42]. The owners used the property, of 103 acres, as their family home [39].

In June 2023, after asking for an indication of costs, Dr Rewais sent BPB's sole director a text message that contained only an email address [42], [46]. From August 2023, BPB emailed most of its invoices to that address [49], [63]. Every invoice BPB issued for the works stated that the claim was made under the Act [51]. The owners made payments on some of those invoices [55], [58]. Dr Rewais also used the address to query an invoice [60]. In February 2024, he used it to address aspects of each invoice then issued in an email exchange with BPB [68].

On 24 April 2024, BPB emailed its payment claim to the same address [77]. The claim was for $277,007.16 [78]. On 22 May 2024, BPB sent a notice of its intention to apply for adjudication under section 17(2), by email to that address and by post to the property [82]. It was not in dispute on the appeal that the owners did not become aware of either document until 11 June 2024 [29]. BPB applied for adjudication on 13 June 2024, and the adjudicator determined that $277,007.16 was payable to BPB [30]. The adjudicator held that the email address had been specified for the purposes of section 31(1)(d), so that the documents were served on 24 April and 22 May 2024 [88].

The primary judge, McGrath J, held that Dr Rewais had given the address only so he could receive a quote, which did not amount to specifying it for service of documents under the Act [94]. His Honour found that service of both documents occurred on 11 June 2024 and that the adjudication application was premature [31]. He nonetheless held that the determination was not void for want of jurisdiction [31]. Relying on Brodyn Pty Ltd t/as Time Cost and Quality v Davenport, he treated the error as falling within what Hodgson JA there called the "more detailed requirements" of the Act [109]. He described the case as falling into a "separate category" [110]. His Honour also held that BPB was not prevented by sections 10 and 94 of the Home Building Act 1989 (NSW) from enforcing the determination, although BPB had contravened the licensing and insurance requirements in sections 4 and 92 of that Act [32].

The Court of Appeal dismissed the appeal and ordered the owners to pay the costs of the appeal and the cross-appeal [164], [165]. BPB's cross-appeal, which relied on section 32A to confine any unenforceability to the residential building work, arose only if the Home Building Act made the determination unenforceable [35]. Because that contingency did not arise, the Court did not consider the cross-appeal and dismissed it for that reason [163], [164]. Mitchelmore JA gave the leading reasons. Leeming JA agreed with her Honour's orders and reasons, and also with McHugh JA's judgment, adding reasons of his own [1]. McHugh JA agreed with the orders and, subject to his own additional reasons, with the reasons of Mitchelmore JA and Leeming JA [166]. No judge dissented.

Mitchelmore JA held that, on the primary judge's findings about service, it necessarily followed that the adjudicator had no jurisdiction and the determination was void [101]. Her Honour applied Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd, in which the Court of Appeal held that compliance with section 17(2) is an essential precondition to an adjudicator's jurisdiction [113]. If the payment claim was served only on 11 June 2024, the progress payment would not have fallen due until 15 business days later, so the period for serving the section 17(2) notice had not begun when the notice was served [108]. BPB argued that the adjudicator's findings about the contractual and statutory mechanisms for service were a "second category" jurisdictional fact, reviewable only as to whether the adjudicator's state of satisfaction existed and was lawfully formed [118]. Her Honour rejected that argument, reasoning among other things that Chase Oyster Bar could not be read so narrowly and that the argument would make the court's answer depend on findings the court thought wrong [120], [121], [122].

Leeming JA added that, on those findings, the owners had been denied substantially all of their time under section 14(4) to provide a payment schedule and all of the further opportunity section 17(2) gives [8]. In his Honour's words, the adjudicator "was mistakenly exercising jurisdiction when he had none" [9].

BPB's notice of contention relied on section 31(1)(d) and (e), on sections 8 and 13A of the Electronic Transactions Act 2000 (NSW) and, for the notice, on service by post under section 31(1)(c) [33]. On that notice, Mitchelmore JA concluded that the primary judge's findings on service were wrong [37]. Adopting Hodgson JA's description in Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd, her Honour treated section 31 as facultative, and noted that attempts to read it restrictively have generally been rejected [128], [130], [133]. The word "specify" is strong, but it takes its colour from its context [134]. Section 31(1)(d) lets a person specify an address for the service of every document that may be served under the Act, or only of particular documents [137]. Specification can be implied or by conduct, and reading the paragraph as limited to express specification would not fit the Act's broader purposes [137], [138].

Here Dr Rewais and BPB had used the address to deal with the works and with invoices styled as payment claims under the Act, including queries and disputes about them [139]. Her Honour held that Dr Rewais had specified the address for service of documents of the kind the Act requires or authorises to be served, so BPB could serve both the payment claim and the adjudication notice by emailing them there [139]. The primary judge erred in treating the original purpose of giving the address, to receive a quote, as dispositive [140].

Her Honour also held that section 13A of the Electronic Transactions Act was relevant to proving service [142]. BPB's evidence showed that the emails could be retrieved by Dr Rewais on the days they were sent, and service did not require that they be opened or read [142]. On that basis, the payment claim was served on 24 April 2024 and the section 17(2) notice on 22 May 2024, within the 20 business day period, so the adjudicator had jurisdiction [144]. Her Honour found it unnecessary to decide BPB's alternative reliance on the Electronic Transactions Act as a basis of service, although she indicated, without deciding, that she would differ from the primary judge on the owners' consent under section 8 of that Act [141]. Nor was it necessary to decide whether the notice was served by post at the owners' ordinary place of business [143].

Leeming JA reasoned that the words "of that kind" in paragraph (d) refer to the class of documents for which the person has specified the address, which may be narrower than every document the Act allows to be served [15], [16]. A person can specify an address impliedly or by conduct: in his Honour's hypothetical example, where earlier payment claims sent to an address were promptly paid without complaint, his Honour saw a sound basis for concluding that the address had been specified at least for payment claims [19]. On the evidence here, payment claims had been sent by email and paid promptly, with no complaint about the mode of service, so payment claims were within the class [24]. A section 17(2) notice was sufficiently similar in nature to a payment claim to fall within it too, and a contrary conclusion would be "quite artificial" [25]. His Honour noted that the same words were inserted into many other Acts, and that his reasoning will not necessarily apply in those different contexts [13], [23].

McHugh JA, with whose judgment Leeming JA agreed [1], said that the question is whether the particular document falls within the class of documents the person specified, not whether the court considers it to be of the same kind as a document within that class [169]. A person specifies an email address by words or conduct, express or implied, that indicate consent to its use for service of that class of documents [170]. His Honour observed that service under the Act may have serious legal consequences, and that a residential consumer's conduct may less readily be seen as impliedly specifying an address than similar conduct of a commercial head contractor [171].

On the facts, McHugh JA held that Dr Rewais' conduct implied consent to service at the address of a class of documents covering payment claims and comparable documents, and his Honour agreed with Leeming JA that excluding section 17(2) notices from it would be artificial [172]. He added that contractors would be well advised first to obtain the principal's express confirmation that an email address may be used for service of documents under the Act [173]. He also said that the same conclusion may not follow in other cases [173].

On the Home Building Act, Mitchelmore JA proceeded on the basis, found by the primary judge, that the work under the contract was residential building work [147]. Her Honour held that the primary judge was correct that sections 10 and 94 did not make the determination unenforceable [163]. Her Honour accepted Hodgson JA's statement in Brodyn that the remedy under the security of payment Act is neither damages nor another remedy for breach of contract, nor enforcement of the contract [151], [158]. The owners accepted that, if that reasoning was correct for section 10, it applied equally to section 94(1)(a) [155]. As to section 94(1)(b), because sections 94(1A) to (1C) preserve recovery on a quantum meruit basis where the court considers it just and equitable, as the owners accepted, section 94(1)(b) is not an absolute prohibition, which told against applying it to the interim regime in Part 3 [161]. The interim nature of that regime also told against the owners' argument [162]. BPB's challenge to the finding that the work was residential building work was not decided [147], [163].

Leeming JA added that section 94(1)(b) is directed to causes of action, and that its words "right of action" do not, without considerable straining, extend to the new statutory rights to interim payment [26]. Mitchelmore JA noted that section 8(2) of the security of payment Act, which commenced on 20 August 2024, provided that a person is not entitled to a progress payment if the contract does not comply with section 4 of the Home Building Act or involves residential building work done in contravention of section 92, but that it was not in force when BPB served its payment claim [154].

Why it matters

Under the New South Wales Act, a respondent who supplied an email address, then received invoices described as payment claims under the Act at it, paid some of them and used it to query and dispute them may be held to have specified that address for service of payment claims and similar documents, and service can then occur on the day an email can be retrieved at that address, even if no one reads it [29], [139], [142], [172]. McHugh JA cautioned that a residential consumer may less readily be taken to have impliedly specified an address by conduct, and that contractors would be well advised to obtain express confirmation first [171], [173].

The decision applies the settled position in New South Wales that service of the payment claim goes to the adjudicator's jurisdiction [104], [111]. So does service of a section 17(2) notice within the time the Act allows [113], [120], [123]. On the primary judge's findings, the determination would therefore have been void [101], [123]. The Home Building Act holding was decided on the legislation before section 8(2) commenced [154]. The decision concerns the New South Wales Act and the New South Wales Electronic Transactions Act, and readers should check the service provisions of the Act that governs their own contract before relying on it.

Numbers in square brackets are paragraph numbers of the judgment. This note summarises a decided case for education and is not legal advice. See how the notes are written.