Postponed by the Post Office Box

I noted a few months ago that service by Dropbox was unreliable under the Security of Payment legislation[1].

The Supreme Court in Queensland has just reached a similar conclusion in relation to Post Office boxes. In CMF Projects Pty Ltd v Masic Pty Ltd [2014] QSC 209 the adjudicator has declined to consider the Adjudication Response because he reckoned it was out of time. That timing turned on the question of whether the notice of acceptance of the appointment had been effectively served by the ANA posting it by Express Post to the respondent’s Post Office box.

The issue was complicated by the adjudicator not having himself served the acceptance notice at all. Section 23 of the Queensland Act[2] provides as follows:

23 Appointment of adjudicator

(1) If an authorised nominating authority refers an adjudication application to an adjudicator, the adjudicator may accept the adjudication application by serving notice of the acceptance on the claimant and the respondent.

The section contemplates that is notice is served by the adjudicator. In this case, the service of the notice was instead handled by the ANA, Adjudicate Today. And so the adjudicator had to make enquiries of the ANA as to when they said they served it.

The respondent did not take this point. Instead, it successfully ran the point that the notice of appointment was not in fact received in its office until some days later, such that its Adjudication Response was in time.

The court found that delivery to a Post Office box satisfied the requirements neither the Act nor the contract, nor Section 39(1)(b) of the Acts Interpretation Act 1954 (Qld) , not s 109X(1) of the Corporations Act 2001 (Cth). Further, the court noted that

Notwithstanding the observations by the adjudicator at paragraph 20.3.1 of his reasons, there is a distinction in BCIPA between the notions of “service” and “receipt” of documents. The word “receive” in the Building Construction Industry Security of Payment Act 1999(NSW) has been considered on numerous occasions, particularly in the context of s 17(3)(c) of that Act, which is the equivalent of s 21(3)(c) of BCIPA. That subsection relevantly provides that an adjudication application must be made “within 10 business days after the claimant receives the payment schedule”. It seems now to be clear enough on the authorities that the word “receive” connotes that, whilst the document in question need not come to the attention of a particular person within the relevant office, it nevertheless does actually need to have arrived at, and thereby been received’, at the recipient’s registered office, or place of business, and be there during normal office hours.[3]

Accordingly, the refusal of the adjudicator to consider the Adjudication Response meant that there was a failure to comply with one of the essential statutory requirements for a valid adjudication, and so the determination was void.

With the benefit of hindsight, of course, it would have been much better if the adjudicator had served the notice of acceptance himself, as contemplated by the Act, rather than allow the ANA to interpose itself in his dealings with the parties. The Wallace Report[4] was recently very critical of the Queensland ANAs, and recommended that they be removed from the adjudication process. The Queensland government website notes[5] that these reforms

will ensure a fairer and more equitable system for appointing adjudicators and should reduce the adjudication costs. They will also provide a better balance between the interests of claimants and respondents.

Latest word is that the ANAs are fighting hard to hang onto their role and have obtained a “stay of execution”. So, in Queensland, a “fairer and more equitable system” will have to wait.


[1] Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd and Anor [2014] QSC 30

[2] The Building and Construction Industry Payments Act 2004

[3] Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 at [63]; Firedam Civil Engineering v KJP Construction [2007] NSWSC 1162 at [64] – [65].




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