Demex Pty Ltd v John Holland Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Demex Pty Ltd v John Holland Pty Ltd [2022] QSC 259

PARTIES:

DEMEX PTY LTD (ACN 635 279 640)

(Applicant)

v

JOHN HOLLAND PTY LTD (ACN 004 282 268)

(Respondent)
FILE NO/S: BS2164 of 2022

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2022

JUDGE:

Crowley J
ORDER:

1.    The Application is dismissed

2.    The Applicant is to pay the Respondent’s costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIMS – where the parties entered into a construction contract– where the Applicant sent a payment claim to the Respondent – where the payment claim was sent by email on a Saturday – where the Respondent opened the email the following Monday – where the Respondent had 10 business days after the payment claim was served to issue a payment schedule – where the Respondent issued the payment schedule more than 10 business days after the email was sent, but less than 10 business days after the email was opened – where the Applicant seeks payment from the Respondent of the full amount of the payment claim – whether service of the payment claim was effected when the Respondent received the email attaching the payment claim – whether the Respondent was required to be aware of the receipt of the emailed payment claim – whether the Applicant had proven that the email was received by the Respondent at or about the time it was sent – whether the Court can take judicial notice of the fact emails are a means of instantaneous electronic communication

Building and Construction Industry Security of Payment Act 1999 (NSW), s 3, s 3(1), s 3(2), s 3(3)(a), s 3(3)(b), s 4(1), s 7, s 11(2), s 13, s 13(1), s 13(1A), s 13(1B), s 14, s 14(4), s 14(4)(a), s 14(4)(b)(ii), s 15, s 15(2)(a)(i), s 15(2)(b), s 31, s 31(1), s 31(1)(b), s 31(1)(d), s 31(2), s 31(4), s 34, s 34(2)(a)
Civil Proceedings Act 2011 (Qld), s 58
Electronic Transactions Act 2000 (NSW), s 13A, s 13A(1), s 13A(1)(a), s 13A(2)
Evidence Act 1995 (NSW) s 161, s 161(1)(e)
Interpretation Act 1987 (NSW), s 33, s 36, s 36(1)

Jurisdiction of Courts (Cross-vesting) Act1987 (NSW), s 11(1)(c)

All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289, cited
Austar Finance Group Pty Ltd v Campbell (2007) 215 FLR 464; [2007] NSWSC 1493, considered

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36, cited
Bauen Constructions Pty Ltd v Sky General Services Pty Ltd & Anor [2012] NSWSC 1123, cited
BCS Infrastructure Support Pty Ltd v Jones Lang Lasalle (NSW) Pty Ltd [2020] VSC 739, distinguished
Bevan v Western Australia (2010) 202 A Crim R 27; [2010] WASCA…

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Details
Case
[2022] QSC 259
Decision Date

CaseChat Overview and Summary

Demex Pty Ltd brought an application against John Holland Pty Ltd in the Supreme Court of Queensland, seeking payment of an amount claimed in a payment claim under a construction contract. The Applicant sent a payment claim to the Respondent via email on a Saturday. The Respondent opened the email the following Monday and issued a payment schedule more than 10 business days after the email was sent, but less than 10 business days after the email was opened. The Applicant claimed the payment schedule was invalid because it was issued outside the time prescribed by the relevant statutory scheme. The Applicant argued that the service of the payment claim was effected when the Respondent received the email attaching the payment claim and that the Respondent was not required to be aware of the receipt of the emailed payment claim. The Applicant also argued that the Court could take judicial notice of the fact that emails are a means of instantaneous electronic communication.

The Court considered whether s 161 of the Evidence Act 1995 (NSW) applied and whether the rebuttable presumption created by s 161(1)(e) could be applied in the circumstances. The Court noted that the parties had approached the matter on the basis that the matter was governed by the laws of evidence applicable in Queensland. The Court proceeded on that basis and did not apply s 161(1)(e). The Court held that the time of receipt of an email was not a matter that could simply be the subject of judicial notice. The Court held that the Applicant had not proven that the email was received by the Respondent at or about the time it was sent and dismissed the application.

The Court ordered that the Application be dismissed and that the Applicant pay the Respondent’s costs.

Orders

Orders of the court

1. The Application is dismissed

2. The Applicant is to pay the Respondent’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

During the course of the hearing of this application, I raised with the parties whether s 161 of the Evidence Act 1995 (NSW) (‘Evidence Act’) applied. I granted leave to the parties to provide further written submissions on the issue. Section 161 provides: 161Electronic communications(1)If a document purports to contain a record of an electronic communication other than one referred to in section 162, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication—(a) was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made, and(b) was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made, and(c) was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made, and(d) was received at the destination to which it appears from the document to have been sent, and(e) if it appears from the document that the sending of the communication concluded at a particular time—was received at that destination at that time.(2)A provision of subsection (1) does not apply if—(a) the proceeding relates to a contract, and(b) all the parties to the proceeding are parties to the contract, and(c) the provision is inconsistent with a term of the contract. The rebuttable presumption created by s 161(1)(e) is obviously intended to facilitate proof of the fact of the timing of receipt of an electronic communication. A similar provision exists in other Uniform Evidence Act jurisdictions. There is no similar statutory presumption within the Evidence Act 1977 (Qld) or under other Queensland legislation. In its further written submission on the point, Demex noted that to the extent that the Court was exercising jurisdiction under the Jurisdiction of Courts (Cross-Vesting) Act, it was open to the Court to choose which rules of evidence were to be applied.[57][57]Jurisdiction of Courts (Cross-Vesting) Act, s 11(1)(c). However, Demex fairly submitted that, as the parties had approached the matter on the basis that the matter was governed by the laws of evidence applicable in Queensland, it would be appropriate for the Court to proceed on that basis and to not apply s 161 of the Evidence Act. John Holland joined in that submission. I proceed on that basis. Whilst I will not apply s 161(1)(e), to my mind the fact that such a presumption has been created by statute applicable in the Uniform Evidence Act jurisdictions suggests that the time of receipt of an email is not a matter that can simply be the subject of judicial notice. A court may, of course, take judicial notice of various kinds of matters, and where that is done, no further evidence is required to establish the fact. Whilst the nature and scope of judicial notice is perhaps not susceptible to precise identification in the abstract, in Holland v Jones, Isaac J provided the following description:[58]The only guiding principle, apart from statute, as to judicial notice which emerges from the various recorded cases, appears to be that whenever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it. The court notices it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigations it considers reliable and necessary in order to eliminate any reasonable doubt.…The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. This excludes from the operation of judicial notice what are not general particular facts.[58](1917) 23 CLR 149, 153; [1017] HCA 26.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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