Elenberg Fraser Pty Ltd v Pamato Corporation Pty Ltd
[2021] VCC 1563
•18 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
BUILDING CASES LIST
Case No. CI-21-03924
| Elenberg Fraser Pty Ltd (ACN 081 961 855) | Plaintiff |
| v | |
| Pamato Corporation Pty Ltd (ACN 162 177 362) | Defendant |
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JUDGE: | Her Honour Judge Burchell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 October 2021 | |
DATE OF JUDGMENT: | 18 October 2021 | |
CASE MAY BE CITED AS: | Elenberg Fraser Pty Ltd v Pamato Corporation Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1563 | |
REASONS FOR JUDGMENT
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Subject: CONTRACTS
Catchwords: Building contract – payment claim – undefended application
Legislation Cited: Building and Construction Industry Security of Payment Act2002 (Vic) ss4, 9, 10A, 10B, 12, 14(2), 15, 16(2) and 48; Civil Procedure Act 2010 (Vic) ss61 and 63
Cases Cited:3D Flow Solutions Pty Ltd v LTP Armstrong Creek Pty Ltd [2018] VCC 674; SJ Higgins v The Bays Healthcare Group Inc [2018] VCC 805; Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; Cool Logic Pty Ltd v Citi-Con Pty Ltd [2020] VCC 1261; APR Structural Steel Pty Ltd v Devco Project and Construction Pty Ltd [2021] VCC 1048.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | C Jones | - |
| For the Defendant | - | - |
HER HONOUR:
1 In this proceeding, the plaintiff (“Elenberg Fraser”) applies for judgment against the defendant (“Pamato”) under s16(2) of the Building and Construction Industry Security of Payment Act 2002 (Vic) (“SOP Act”). Elenberg Fraser makes the application by summons on originating motion dated 9 September 2021. The application arises out of architectural design and construction services performed at 139-169 Camberwell Road, Hawthorn East pursuant to a contract with Pamato (“the Project”).
2 Elenberg Fraser asserts that it is entitled to judgment because Pamato failed to issue a payment schedule in response to its payment claims. Elenberg Fraser relies on two affidavits of Callum Fraser, director, affirmed on 9 September 2021 and 15 October 2021 and the affidavit of service of Allen Salib, process server, sworn on 21 September 2021.
3 Pamato has not filed a notice of appearance in this proceeding despite the documents being hand delivered at its registered office on 20 September 2021.
4 In my judgment, each of the payment claims is valid, and Pamato has failed to serve a payment schedule in response to any of the claims. Therefore, Elenberg Fraser is entitled to judgment on the balance owing as a debt due from Pamato. My reasons in respect of each ground are set out below.
5 Accordingly, there is judgment for Elenberg Fraser in the sum of $123,722.50 (including GST), together with interest pursuant to s12(2)(a) of the SOP Act. I also order that Pamato pay Elenberg Fraser’s costs of and incidental to the proceeding fixed in the amount of $11,557.96 pursuant to r63A.07(2)(c) of the County Court Civil Procedure Rules 2018.
Factual Background
6 Elenberg Fraser conducts a business specialising in commercial and multi-residential architecture and interior design.
7 Pamato conducts a property development business specialising in the construction of residential developments.
8 In March 2014, Elenberg Fraser and Pamato entered into a contract (“Contract”) pursuant to which Elenberg Fraser agreed to provide architectural design and construction services (“Services”) in respect of the development and construction of a mid-rise residential development comprised of residential apartments, ground floor office and retail and basement carparking by Pamato at the Project.
9 The Contract includes the following terms:
(a) the Contract Sum is $1,550,000.00 (GST exclusive) (clause 2);
(b) fees to be invoiced progressively on a monthly basis (clause 5); and
(c) all monies payable by the defendant to Elenberg Fraser shall be paid within 30 days of invoice (clause 5).
10 On about 11 March 2014, Elenberg Fraser commenced the works in phase 3 sketch design of the contract, and completed the works in December 2019.
11 On 31 October 2018, Elenberg Fraser issued an alleged payment claim, being invoice no. 00007393 with a claimed amount of $12,182.50 (GST inclusive), which was sent to Pamato by way of email to [email protected].
12 On 26 November 2018, Elenberg Fraser issued an alleged payment claim, being invoice no. ML007411 with a claimed amount of $9,460.00 (GST inclusive), which was sent to Pamato by way of email to [email protected].
13 On 12 December 2018, Elenberg Fraser issued an alleged payment claim, being invoice no. ML007438 with a claimed amount of $9,460.00 (GST inclusive), which was sent to Pamato by way of email to [email protected].
14 On 24 January 2019, Elenberg Fraser issued an alleged payment claim, being invoice no. ML007454 with a claimed amount of $9,460.00 (GST inclusive), which was sent to Pamato by way of email to [email protected].
15 On 28 February 2019, Elenberg Fraser issued an alleged payment claim, which was sent to Pamato by way of email to [email protected]. Unlike the other alleged claims, this claim comprised two tax invoices:
(a) invoice no. ML007487 in the sum of $9,460.00, for services described as “project phase 6 – construction services”; and
(b) invoice no. ML007488 in the sum of $13,200.00, for an allegedly approved variation described: “DV#032: redesign of commercial entry”.
16 On 31 March 2019, Elenberg Fraser issued an alleged payment claim, being invoice no. ML007520 with a claimed amount of $9,460.00 (GST inclusive), which was sent to Pamato by way of email to [email protected].
17 On 24 April 2019, Elenberg Fraser issued an alleged payment claim, being invoice no. ML007539 with a claimed amount of $9,460.00 (GST inclusive), which was sent to Pamato by way of email to [email protected].
18 On 30 May 2019, Elenberg Fraser issued an alleged payment claim, being invoice no. ML007568 with a claimed amount of $40,700.00 (GST inclusive), which was sent to Pamato by way of email to [email protected].
19 On 20 December 2019, Elenberg Fraser issued an alleged payment claim, being invoice no. ML007732 with a claimed amount of $880.00 (GST inclusive), which was sent to Pamato by way of email to [email protected].
20 Mr Fraser deposes that he has checked Elenberg Fraser’s incoming post and emails including all spam and deleted email folders and no payment schedules were received in response to any of the payment claims.
21 Mr Fraser further says that he checked Elenberg Fraser’s bank accounts and is satisfied that no payment in relation to any of the payment claims has been received.
22 Elenberg Fraser argues that by reason of the matters above, the claimed amount of $123,722.50 (GST inclusive) remains unpaid and outstanding as a debt due by Pamato to Elenberg Fraser.
The legal context
23 The SOP Act seeks to ensure that people who undertake to carry out construction work can recover progress payments for the performance of that work.[1]
[1]SOP Act s 3.
24 Section 4 defines construction contract as a “contract or other arrangement under which one party undertakes to carry out construction work, or to supply related goods and services for another party”. The SOP Act applies to any construction contract whether written or oral, or partly written and partly oral.[2] It applies even if the contract is governed by the law of a jurisdiction other than Victoria.[3] There was no dispute that the works the subject of this proceeding is “construction work” within the meaning of s5 of the SOP Act.
[2]Ibid s 7.
[3]Ibid.
25 Section 16(2)(a) provides that a claimant may recover the unpaid portion of an amount claimed (as a debt due) where the defendant fails to make payment in response to a payment claim.
26 Section 14 outlines the requirements of a payment claim:
(a) it must be in the relevant form;
(b) it must contain the prescribed information (if any);
(c) it must identify the construction work to which it relates;
(d) it must indicate the amount of progress payment claimed; and
(e) it must not contain excluded amounts.
27 The court must read s14 with the reference date provisions in s9. Section 9(1) stipulates that on or from a reference date, the claimant is entitled to a progress payment calculated by reference to that date. Section 9(2)(a)(i) provides that the reference date is a date on which a claim for a progress payment may be made in relation to a specific item of construction work or related goods and services and which is determined by or in accordance with the terms of the contract.
28 The SOP Act permits only limited defences, which include that:
(a) the claim does not relate to a “construction contract”;
(b) the progress claim fails to satisfy the formal requirements of the SOP Act (s14(2));
(c) the claim was made prematurely, before the applicable reference date;
(d) variations were not claimable variations; and
(e) the timing and sufficiency of the payment schedule failed to comply with the SOP Act.[4]
[4]Fulconstruction Pty Ltd v ABP Consultants Pty Ltd [2016] VCC 1732 [8] (Anderson J).
29 By reason of s47, a judgment under s16 is a provisional judgment in what it grants and what it refuses. [5] The statutory context both contemplates and allows inconsistent judgments.[6]
[5]Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd & Anor (2009) 26 VR 112 [2] and [43]-[46] (Vickery J), cited with approval in Pearl Hill Pty Ltd v Concorp Construction Group (Vic)Pty Ltd [2011] VSCA 99 [11].
[6]Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd (2005) 62 NSWLR 385 [22] (Handley JA, with whom Santow JA and Pearlman AJA agreed).
30 This court has endorsed the hearing of security of payment applications on a summary basis by summons on originating motion with affidavit evidence.[7] Such claims are properly assessed on the balance of probabilities.[8]
[7]3D Flow Solutions Pty Ltd v LTP Armstrong Creek Pty Ltd [2018] VCC 674 [39]-[54]. See also SJ Higgins v The Bays Healthcare Group Inc [2018] VCC 805 [26].
[8]Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 449-450 (Mason CJ, Brennan, Deane and Gaudron JJ).
31 Where the plaintiff applies for summary judgment under s16, it may be appropriate to apply the test in s61 of the Civil Procedure Act 2010 (Vic) (“CPA”).[9] However, in the present case, I will adopt the approach taken in 3D Flow Solutions and recommended in SJ Higgins.
[9]John Beever v Roads Corporation [2018] VSC 635; see also Best Fab Pty Ltd v Australian High Bay Installations Pty Ltd [2018] VCC 1053.
Are the requirements of the SOP Act satisfied?
Construction contract
32 The contracts in issue are clearly construction contracts because they are contracts under which Elenberg Fraser undertook to carry out construction work for Pamato. Further, as Elenberg asserts, the architectural services and building advisory services during the construction phase of the Project the subject of the payment claims are clearly related services (ss4 and 5 of the SOP Act).
Reference dates
33 The starting point for an analysis of reference dates is s9 of the SOP Act. Section 9(1) stipulates that on and from each reference date under the construction contract, the claimant is entitled to a progress payment calculated by reference to that date.
34 Section 9(2)(a)(i) of the SOP Act provides that the reference date is a date on which a claim for a progress payment may be made in relation to a specific item of construction work or related goods and services and which is determined by or in accordance with the terms of the contract.
35 The authorities indicate that a payment claim must be submitted on or after a reference date.
36 In Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (“Southern Han”), the High Court held that a reference date is the “precondition” to a valid payment claim.[10]
[10](2016) 260 CLR 340 [61]-[62]
37 In All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd,[11] the majority applied Southern Han and held that:
“[A] statutory payment claim served before the relevant reference date is not served ‘on or from’ that reference date for the purpose of the NSW SOP Act, the effect being that the phrase ‘on or from’ when properly construed, is to be understood as meaning ‘on or after’ the relevant reference date.”[12]
[11][2017] NSWCA 289
[12]Ibid [14]
38 Finally, in MKA Bowen v Carelli Constructions (“MKA Bowen”)[13] Digby J held that:
“In my view … it is sufficiently clear in light of Southern Han and All Seasons that s 9 and s 14 of the SoP Act (Vic) do not operate so as to permit the valid service of a payment claim prior to the relevant reference date which itself establishes a valid foundation for that payment claim to be made under the SoP Act (Vic) ….”
[13][2019] VSC 436
39 Where the contract does not provide a reference date, the default reference date provisions in s9(2)(b), (c) and (d) of the SOP Act apply as follows:
“(b)subject to paragraphs (c) and (d), if the contract makes no express provision with respect to the matter, the date occurring 20 business days after the previous reference date or (in the case of the first reference date) the date occurring 20 business days after—
(i) construction work was first carried out under the contract; or
(ii)related goods and services were first supplied under the contract; or
(c) in the case of a single or one-off payment, if the contract makes no express provision with respect to the matter, the date immediately following the day that—
(i) construction work was last carried out under the contract; or
(ii)related goods and services were last supplied under the contract; or
(d) in the case of a final payment, if the contract makes no express provision with respect to the matter, the date immediately following—
(i) the expiry of any period provided in the contract for the rectification of defects or omissions in the construction work carried out under the contract or in related goods and services supplied under the contract, unless subparagraph (ii) applies; or
(ii) the issue under the contract of a certificate specifying the final amount payable under the contract a final certificate ; or
(iii) if neither subparagraph (i) nor subparagraph (ii) applies, the day that—
(A) construction work was last carried out under the contract; or
(B) related goods and services were last supplied under the contract.”
40 Pursuant to s14(8) of the SOP Act, “a claimant cannot serve more than one payment claim in respect of each reference date under the construction contract”. The exception to this is where an amount the subject of a previous payment claim has not been paid (s14(9) of the SOP Act).
41 Elenberg Fraser submits that clause 5 of the contract governs reference dates and allows it to serve payment claims progressively on a monthly basis (with no particular date being specified).
42 Consequently, Elenberg Fraser says it became entitled to issue payment claims each month from March 2014 (when it commenced providing services under the contract). It says the permissible reference dates are between the first and last day of each calendar month, and that the parties indicated the reference dates be flexible in that respect.
43 Elenberg Fraser analogises the alleged reference date provision in this proceeding to those in Cool Logic Pty Ltd v Citi-Con Pty Ltd[14]; and APR Structural Steel Pty Ltd v Devco Project and Construction Pty Ltd[15]. The contracts in those proceedings provided that the plaintiff could serve payment claims “by the 25th day of the month projected to the end of the month”; “by the 25th day of the month”; and “no later than the 25 [sic] day of the month”.
[14][2020] VCC 1261.
[15][2021] VCC 1048.
44 I do not accept the submissions of Elenberg Fraser. The alleged reference date provision does not appear in clause 5 of the contract. Rather, clause 5 relevantly states that:
“Elenberg Fraser shall provide the Professional Services and the Client shall pay Elenberg Fraser the fees and reimbursable expenses in accordance with this agreement and project programme (refer attached). All monies payable by the Client to Elenberg Fraser shall be paid within 30 days of invoice”.
45 Therefore, this proceeding is distinct from Cool Logic and APR Steel, where the contracts provided a reference date. Accordingly, the default reference dates in the Act apply.
46 The first reference date arises 20 business days after the construction works were first carried out (s9(2)(b)(i) of the SOP Act). On the evidence, the construction works were first carried out on about 11 March 2014. Accordingly, the first reference arose on about 8 April 2014.
47 The first payment claim (invoice no. 00007393) was served on 31 October 2018. Accordingly, invoice no. 00007393 has a reference date.
48 From that point, reference dates arose 20 business days after the previous reference date (s9(2)(b)(i) of the SOP Act). Each subsequent claim complies with that requirement:
(a) on 26 November 2018, Elenberg Fraser issued invoice no. ML007411 on 26 November 2018;
(b) on 12 December 2018, Elenberg Fraser issued invoice no. ML007438 on 12 December 2018;
(c) on 24 January 2019, Elenberg Fraser issued invoice no. ML007454;
(d) on 28 February 2019, Elenberg Fraser issued invoices no. ML007487 and ML007488;
(e) on 31 March 2019, Elenberg Fraser issued invoice no. ML007520;
(f) on 24 April 2019, Elenberg Fraser issued invoice no. ML007539;
(g) on 30 May 2019, Elenberg Fraser issued invoice no. ML007568; and
(h) on 20 December 2019, Elenberg Fraser issued invoice no. ML007732.
49 Accordingly, each of the payment claims has a reference date.
50 An incidental issue is whether the 28 February 2019 invoices constitute one or two payment claims. If the latter, there is more than one payment claim in respect of the same reference date, contrary to s14(8) of the SOP Act.
51 Elenberg Fraser submits that the invoices are a single payment claim in circumstances where:
(a) the invoices related to two distinct components of work (the latter comprised a variation);
(b) the emails enclosing the invoices were sent within 8 minutes of each other; and
(c) the course of dealings between the parties was such that, where Elenberg Fraser performed services under the contract and separately invoiced for a variation, the usual course of conduct was to issue two invoices (which Pamato accepted).
52 The critical question, says Elenberg Fraser, is whether the recipient of the invoices would reasonably have understood that they constituted one payment claim.[16]
[16]JR & LM Trackson Pty Ltd (ACN 088 333 831) v NCP Contracting Pty Ltd (ACN 121 915 017) [2019] QSC 201, [103]; Alan Conolly v Commercial Indemnity [2005] NSWSC 339, [22].
53 I accept the submissions of Elenberg Fraser. Having regard to the matters on which Elenberg Fraser relies (most notably the fact that Pamato accepted and had previously accepted and paid for dual invoices as part of one transaction), Pamato would reasonably have understood that the invoices related to one payment claim.
Identification of the construction work
54 Elenberg Fraser submits that the alleged payment claims adequately identify the construction works to which they relate.
55 Elenberg notes that the descriptions of the services on the payment claims outlined the particular phase of the Project the services were carried out under (phase 6), the fixed price for the services for that phase, and the percentage of services complete under that phase. In the case of variations, the claims detailed the variation number and a description of the variation services.
56 Elenberg Fraser further notes that the descriptions of services on each of the payment claims were consistent with the descriptions on the previous payment claims issued by Elenberg Fraser, which Pamato paid for without complaint.
57 Whether a payment claim sufficiently identifies the construction work is an objective test.[17] The test is whether a reasonable person in the position of Pamato can comprehend the basis of the claim.[18] The test is not overly stringent; the court must not adopt an unduly technical or pedantic approach.[19] The context of the payment claim is relevant, including industry conventions and earlier contractual dealings.[20] The background knowledge of the parties from their past dealings and prior exchanges of information (including correspondence) are also relevant.[21] Thus the court may look beyond the face of the payment claim.
[17]John Beever (Aust) Pty Limited v Paper Australia Pty Ltd [2019] VSC 126, Lyons J at [83]
[18]Ibid
[19]Ibid; Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VSC 106, Vickery J at [51]
[20]Clarence Street Pty Ltd v Isis Projects Pty Ltd [2005] NSWCA 391 [40]
[21]John Beever (Aust) Pty Limited v Paper Australia Pty Ltd [2019] VSC 126, Lyons J [83]; Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VSC 106 Vickery J, at [51]
58 At first blush, the descriptions contained in invoice nos. 00007393, ML007411, ML0077438, ML007454, ML007487, ML007520, ML007539, and ML007732, appear vague.
59 Invoice no. 00007393 is described: “Provision of architectural services in accordance with Consultancy Agreement dated 20th April 2013 (Rev B)” and “DV#30: Additional Resources for Client Directed Changes”.
60 Invoice nos. ML007411, ML0077438, ML007454, ML007487, ML007520, ML007539, and ML007732 have a similarly descriptions: “Provision of architectural services in accordance with Consultancy Agreement dated 11th March 2014 (Rev D)” and “Construction Services”.
61 In each instance, the “architectural services” and “Construction Services” are not particularised or broken down. The provisions of the consultancy agreement to which they relate are not particularised. Further, in the case of invoice 00007393, the “Additional Resources for Client Directed Changes” are not particularised.
62 However, having regard to the past dealings and background knowledge of the parties and applying the principles in Gantly Pty Ltd[22], I am satisfied that these payment claims adequately identify the construction work. The descriptions of services on each of the payment claims were consistent with the descriptions on the previous payment claims. Importantly, Pamato accepted the previous claims without complaint. It follows that a reasonable person in the position of Pamato would understand the works to which the claims at issue relate.
[22] Ibid and at [117]
63 Further, in my view, the remaining payment claims (invoice nos. ML007488 and ML007568) adequately identify the construction work.
64 Invoice no: ML007488 is more specifically described: “Provision of architectural services in accordance with Consultancy Agreement dated 11th March 2014 (Rev D)” and “DV#032: Redesign of Commercial Entry”.
65 Similarly, invoice no: ML007568 is described: “Provision of architectural services in accordance with Consultancy Agreement dated 11th March 2014 (Rev D)” and “DV#33 Construction Documentation of Atrium”.
66 Accordingly, each of the payment claims adequately identifies the construction work to which it relates.
Excluded amounts
67 A plaintiff must also satisfy the court that a payment claim does not contain excluded amounts (s14(3)(b) of the SOP Act). The onus is on the plaintiff to negate the fact of excluded amounts.[23]
[23]John Beever v Road Corporation [2018] VSC 635 [44], [131] and [132].
68 In assessing whether a payment claim contains excluded amounts, the court may only examine “the face of the payment claim”.[24] The face of the payment claim comprises the claim itself, any supporting documents, and any references to those documents. Any extrinsic evidence is irrelevant.
[24]Yuanda Vic Pty Ltd v Façade Designs International Pty Ltd [2021] VSCA 44 [44] (McLeish and Niall JJA), [120] (Sifris JA).
69 If the court is not satisfied that a claim does not contain excluded amounts, the entire payment claim is invalid, and the court cannot award judgment. The court cannot sever any offending portion of the claim.[25]
[25]Ibid [36] (Sifris JA), [143] (McLeish and Niall JJA).
70 In this proceeding, three alleged payment claims contain variations.
71 The first is the 31 October 2018 claim (invoice no. 00007393). Elenberg Fraser admits this is a variation described: “DV#30: for additional architectural services for client directed changes to the project scope”. On 25 September 2017, following a request by Pamato to perform the variation services the subject of the claim, Elenberg Fraser issued a written notification of variation DV#30, which was signed and approved by Pamato on 2 October 2017.
72 The second variation is within the second invoice of the 28 February 2019 claim (invoice no. ML007488). Elenberg Fraser admits this contains a variation described: “DV#032: redesign of commercial entry”. December 2018, following a request by Pamato to perform the variation services, Elenberg Fraser issued a written notification of variation DV#032 and sent an email to Pamato regarding the variation, and Pamato responded confirming its approval of the variation.
73 The third variation is within the 30 May 2019 claim (invoice no. ML007568). Elenberg Fraser admits this contains a variation described: “DV#033: construction documentation of atrium”.
74 On 8 March 2019, following a request by Pamato to perform the variation services the subject of the claim, Reade Dixon, a principal of Elenberg Fraser, sent an email to Pamato attaching a written notification of variation DV#033.
75 On 24 April 2019, Mr Dixon sent a further email to Pamato seeking approval for variation DV#33.
76 In the week commencing 20 May 2019, a meeting was held between Elenberg Fraser and Pamato during which Mr Tuddenham confirmed that variation DV#33 had been approved and requested Elenberg Fraser to expedite the construction documentation for the variation.
77 On 27 May 2019, Mr Tuddenham sent an email to Elenberg Fraser confirming the approval of variation DV#33 that had been reached at the meeting the week prior.
78 In my view, the signed written notification for the 31 October 2018 variation, and the email approvals of the 28 February 2019 and 30 May 2019 variations, are supporting documents of the payment claims within the meaning of Yuanda. I can have regard to those documents as part of the “face of the payment claim”.
79 On that basis, I accept that each of the variations are first class claimable variations within the meaning of s 10A(2) of the SOP Act.
80 The signed written notification and emails indicate that the parties agreed to the requisite elements in s 10A(2) of the SOP Act (such as that work has been carried out or goods and services have been supplied; and as to the scope of the work that has been carried out or the goods and services that have been supplied).
81 In the case of the 31 October 2018 claim (invoice no. 00007393), the requisite agreement is reinforced by its description: “DV#30: for additional architectural services for client directed changes to the project scope”.
82 Accordingly, the payment claims do not contain excluded amounts.
Other formal requirements
83 Each payment claim indicates the amount of the progress payment which Elenberg Fraser claims is due (s14(2)(d) of the SOP Act).
84 Each claim indicates that it is a claim made under the SOP Act in terms: “This is a payment claim made under the applicable Security of Payment Legislation in each State or Territory” (s14(2)(e) of the SOP Act).
Service
85 A procedural issue in the proceeding is whether the payment claims were validly served.
86 The authorities indicate the critical importance of service in accordance with s14 of the SOP Act, as it governs the commencement of the time limitations. The consequences of non-compliance with these time limitations is harsh.[26]
[26]Metacorp Pty Ltd v Andeco Construction Group Pty Ltd [2010] VSC 199; (2010) VR 141 [123]-[125] and Emag Constructions Pty Limited v Highrise Concrete Contractors (Aust) Pty Limited [2003] NSWSC 903 [38].
87 As Sifris J held in In the Matter of Kornucopia Pty Ltd (No 1),[27]
“In Newsnet Pty Ltd v Patching, White J considered that service would be effective when the email is received, but not necessarily ‘when the document is brought to the attention of a responsible officer.’[49] Recently, in SGR Pastoral Pty Ltd v GJ, LE & JN Christensen (SGR Pastoral),[50] Bowskill J reviewed the varying lines of authority, and preferred the view of White J. Her Honour concluded:[51]
In the case of service by email, in my view, what must be shown is that the electronic copy of the application and supporting affidavit was received, in a complete and legible form, at the address for service, within the prescribed time. That is, that the email was sent to an email address that bellows to the nominated agent for service….that the email attaching the documents to be served actually arrived at the email address; and that the email and attached documents were capable of being opened and read (even if they were not opened and read until later).”
[27][2019] VSC 756 [51].
88 In this proceeding, the issue is whether the email was sent to “an email address that bellows to the nominated agent for service”.
89 Elenberg Fraser served each of the payment claims upon Pamato by email to [email protected]. That email address belongs to Magnus Floden, a director and shareholder of Pamato. Mr Floden was one of two directors of Pamato and Elenberg’s primary contact under the contract. The other director was Paul Tuddenham, who signed the contract on behalf of Pamato. Mr Tuddenham was copied into the emails which served the payment claims.
90 In my view, the fact that Mr Tuddenham signed the contract, and was copied into the emails attaching the payment claims, suggests that the payment claims were served to “an email address that bellows to the nominated agent for service”.
91 This is reinforced by the fact that Elenberg Fraser previously served payment claims upon the email addresses of Messrs Floden and Tuddenham, and Pamato paid those payment claims.[28]
[28]For example, the 30 June 2018, 25 July 2018, 31 August 2018 and 27 September 2018 claims.
92 Accordingly, the payment claims were validly served.
Failure to issue payment schedule
93 Mr Fraser confirms that Elenberg Fraser has not received a payment schedule in response to any of the payment claims.
Conclusion
94 For the foregoing reasons, there is judgment for Elenberg Fraser in the sum of $123,722.50 (including GST), together with interest and costs.
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Certificate
I certify that these 16 pages are a true copy of the judgment of Her Honour Judge Burchell delivered on 18 October 2021.
Dated: 18 October 2021
Andrea Ko
Associate to her Honour Judge Burchell
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