Reward Interiors Pty Ltd t/as Reward Group v Tackelly No 8 Pty Ltd atf Tackelly No 8 Trust [2026] NSWCA 133

What the court decided

The first respondent to the appeal was Tackelly No 8 Pty Ltd, as trustee for the Tackelly No 8 Trust [4]. Tackelly engaged Reward Interiors Pty Ltd under a contract made on or around 22 December 2023 for design and construction works for the refurbishment of a hotel in Perth [7]. On 25 November 2024 an adjudicator determined that $2,607,168.96 plus interest was payable to Reward on a payment claim it had served under the Act [10], [14]. Ward P noted that adjudication review, a limited appeal to a senior adjudicator before any curial review, was unique to the Western Australian scheme [1], [32].

Tackelly applied for review on 2 December 2024 [15]. Later that day (4:33 pm in Perth) Tackelly's solicitors emailed Reward's managing director and Reward's solicitor [16]. The attachment to that email was itself an email containing a Mimecast link from which files, including a large zip file holding the review application, could be downloaded [17], [126]. The parties admitted that the application could be accessed and downloaded from the repository immediately on that day [20]. Reward's managing director opened the link and downloaded the material on 4 December 2024 [22].

On 13 January 2025 the review adjudicator held that he lacked jurisdiction, because section 42(3) was a jurisdictional precondition and had not been complied with [24]. On 16 January 2025 Tackelly began proceedings in the Supreme Court of New South Wales to set aside both determinations [25]. Ward P recorded that both companies were based in New South Wales, with registered offices in Sydney [25]. Reward pointed out that the Supreme Court had jurisdiction under section 9 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) and section 4(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) [25]. Ward P noted that there was no application to transfer the proceedings to Western Australia [25].

The primary judge found that section 42(3) had not been complied with, but held that compliance was not a jurisdictional precondition, so the review adjudicator had fallen into jurisdictional error [2]. Her Honour's orders of 29 May 2025 in effect quashed the review determination and declared it invalid [26]. Reward appealed on the jurisdiction issue [3]. By notice of contention, Tackelly argued that the primary judge erred in finding that it had not given Reward a copy of the application within one business day [4].

Ward P held that section 42(3) is a jurisdictional requirement and that the primary judge erred in holding otherwise [74]. McHugh JA and Free JA each agreed with her Honour on that issue [120], [124]. The mandatory language of section 42(3) pointed that way, though it was not determinative [67]. More significant, in her Honour's view, was the place of the requirement in a review process built on carefully calibrated time limits, apparently chosen to make the regime "brutally fast" [67]. Her Honour observed that the Western Australian legislature knew that the East Coast Model had no such time limit and chose to impose one for adjudication review [67]. Her Honour acknowledged that section 42(3) and section 30(2), which imposes a similar one business day requirement for adjudication applications, would be expected to be construed consistently [37], [68].

In Ward P's view, the opposite construction would defer the start of later timeframes, such as the period for a response under section 45(1), and create uncertainty in the review process [69]. Her Honour accepted that, on her construction, an application given late by however short a period could not proceed to review, and that this might in one sense prolong the payment dispute [70]. She said, however, that it also removed one layer of adjudication and allowed speedier determination of the payment claim [70]. Because the time for a response runs from receipt of a copy of the application, section 42(3) was an essential precondition to the later steps in the review procedure [71].

On the notice of contention, all three judges held that section 113(2)(a), which requires a document to be given in the manner provided in the contract where reasonably practicable, did not apply [106], [121], [131]. Ward P held that clause 7.1 of the contract, which deemed notices sent in specified ways to have been given and received, was facilitative rather than prescriptive [101], [104]. Her Honour read section 113(2)(a) as referring to a manner the contract requires [104]. The question was therefore whether Tackelly had used a method in section 113(3), and it relied on paragraph (d), giving by email to an address the person had specified for documents of that kind [106].

Ward P would have upheld the notice of contention [117]. Her Honour accepted that section 113(3)(d), read with the definition of "give" in section 113(1), allows a document to be given by being otherwise provided to a person by email [108]. She held that paragraph (e), which allows the regulations to authorise methods not already addressed in paragraphs (a) to (d), was no reason to read paragraph (d) narrowly [107]. In her view the application was "otherwise provided" when the link was sent to and received by Reward, even though the recipient had to open the attached email and then click on the link [114]. She would have dismissed the appeal with costs [118].

Free JA gave the majority's reasons on this issue, and McHugh JA agreed with them and with the orders Free JA proposed [122], [123]. For Free JA, paragraph (e), which contemplates regulations authorising methods such as an electronic database or other means of electronic access to a document, showed that the legislature had addressed the practice of storing documents electronically and enabling access to them, and had chosen to allow that method only if and when the regulations authorised it [137], [140]. Free JA regarded that choice as a strong indication that paragraph (d) did not already authorise the method [140]. The regulations did not authorise sending a Mimecast link by email [138].

Free JA distinguished between giving or providing a document to a person and providing a means by which the person "can access" it [142]. A document attached to an email is received when the email reaches the recipient's email service, and is then in the recipient's possession and control [143]. Where only a link is sent, none of the documents is provided with the email and the recipient must take further steps to obtain them; the sender may also be able to remove or alter them in the meantime [144]. The documents were therefore not given or provided "by email" [144]. Free JA accepted that on the facts it would have been impractical to send so large a volume of documents as email attachments in the time allowed, but held that Tackelly's construction did not follow [145], [146], [147]. Free JA said that parties may agree in their contract to other methods, including links to databases like Mimecast, and that the regulations can authorise such methods [147].

McHugh JA held, for Free JA's reasons, that the primary judge was right that Tackelly had not given Reward a copy of the review application and its accompanying documents by 3 December 2024 [122]. Because section 42(3) had not been complied with and was jurisdictional, the majority allowed the appeal [122], [125]. The court set aside orders 1, 2 and 4 of the primary judge, dismissed prayers 15 to 18 of the amended summons and remitted the proceedings to the primary judge for any remaining issues [148]. Tackelly was ordered to pay Reward's costs of the appeal and of the questions decided at first instance [148].

Why it matters

The decision concerns adjudication review under the Western Australian Act. On the court's reasoning, where a party applying for adjudication review does not give the other party a copy of the application within one business day, the review adjudicator lacks jurisdiction, however short the delay. On the majority's construction of section 113(3), emailing a link to documents held in an online repository did not give those documents by email, even though they could be downloaded at once. Free JA pointed to a contract term or a regulation as the means by which such a method could be authorised. Ward P would have held the link sufficient.

The court did not decide whether section 30(2), the corresponding requirement for adjudication applications, is jurisdictional. Readers should check the current Act and regulations, and any contract clause on the giving of documents, before relying on the decision.

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.